UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


•    QUESTIONS  AND  ANSWERS 


FOR 


BAR-EXAMINATION   REVIEW 


BY 


CHARLES  S.  HAIGHT,  M.  A.,  LL.B. 

OF   THE   NEW    YORK    BAR 


AND 


ARTHUR  M.  MARSH.  B.  A..  LL.B. 

OF    THE    CONNECTICUT    BAB 


SECOND  EDITION 


NEW  YORK 

BAKER,  VOORHIS  &  COMPANY 
1909 


1909 


COPYRIGHT,  1909. 
BY  BAKER.  VOORHIS  &  COMPANY. 


J.  B.  LYON  COMPANY 

PRINTERS  AND  BINDERS 

ALBANY,  N.  Y. 


e? 


TO 

THE  DEAX  AND  PEOFESSORS 

OF 

THE  HARVARD  LAW  SCHOOL, 

to  whom  the  authors  are  most  deeply  indebted, 
THIS  BOOK  is  DEDICATED. 


PREFACE. 


The  preparation  of  this  book  was  suggested  a  number  of 
years  ago  by  the  actual  work  of  a  general  review  preparatory  to 
the  examinations  for  admission  to  the  New  York  Bar.  The 
very  marked  changes  in  the  methods  of  Bar  Examiners  had,  at 
that  time,  first  become  manifest,  and  it  was  thought  that  a  book 
for  review  which  was  prepared  in  accordance  with  the  change 
in  the  nature  of  the  examination  questions  would  be  desirable. 

The  present  theory  of  the  Boards  of  Examiners  of  the  differ- 
ent States  was  expressed  by  a  member  of  the  Xew  York  Board 
in  1895,  when  he  felt  called  upon  to  explain  the  difference  in 
the  form  of  questions  from  that  of  previous  years;  "We  want 
to  see  if  you  can  apply  legal  principles."  A  student  is  no 
longer  asked  to  define  a  partnership,  or  a  corporation,  but  is  re- 
quired to  state  the  rights  or  the  liabilities  of  the  parties  in  a 
given  case.  This  more  exacting  method  of  examination  re- 
quires a  more  careful  review  than  was  formerly  necessary  when 
the  questions  had  become  almost  stereotyped. 

In  preparing  the  present  book  no  effort  has  been  made  to 
follow  any  questions  asked  by  former  examiners  in  any  State, 
and  no  old  examination  papers  have  even  been  consulted.  On 
the  contrary,  every  effort  has  been  made  to  write  a  book  which 
should  not,  in  any  sense,  be  a  "cramming  book,"  but  would 
simply  assist  a  student  to  make  -the  needed  review  of  his  past 
work.  It  is  believed  that  a  book  which  aids  in  an  honest  and 
thorough  review  of  the  legal  principles  previously  acquired 
occupies  a  legitimate  field. 

But  a  review  presupposes  former  study.  The  present  book 
has  not  been  written  with.the  least  expectation  that  it  would  be 
of  interest  or  of  value  to  laymen  who  wish  to  read  the  ele- 
mentary principles  of  the  common  law.  It  is  for  the  law 
student,  who  has  previously  done  the  work,  that  the  book  has 
been  prepared. 

The  utmost  care  has  been  taken  to  do  the  work  in  such  a 
way  as  to  make  the  book  of  equal  value  in  all  of  the  States  of  the 


iv  PREFACE. 

country.  Citations  have  been  chosen  from  all  jurisdictions, 
and  where  there  is  a  conflict  between  the  different  States  upon 
any  material  point,  the  conflict  has  been  noted,  and  the  opposing 
jurisdictions  given,  as  far  as  possible.  English  cases,  also,  have 
been  cited,  but  only  where  such  citations  were  believed  to  be 
of  value  in  this  country.  In  many  subjects,  such  as  Real 
Property  and  Sales,  the  leading  cases  are  frequently  to  be  found 
in  the  English  reports. 

The  cases  cited  should  be  read  as  far  as  such  a  course  is 
feasible.  •  A  large  proportion  of  them  are  from  the  cases 
selected  for  use  at  the  Harvard  Law  School  as  a  result  of  long 
experience  and'painstaking  search,  and  they  will  be  found  to  be 
of  the  greatest  value. 

The  debt  which 'the  authors  owe  to  the  professors  of  the 
Harvard  Law  School  is  most  gladly  acknowledged.  To  them  is 
due  any  value  which  the  present  work  may  have.  The  collec- 
tions of  cases  made  by  them  have  been  freely  used;  the  text- 
books written  or  edited  by  them  have  been  freely  quoted,  and 
the  notes  of  their  lectures  have  been  a  constant  assistance.  It 
is  only  hoped  •that  the  book  may,  in  'some  degree,  reflect  the 
spirit  of  their  instruction. 

September  15,  1899. 

C.  S.  H. 
A.  M.  M. 


PREFACE  TO  THE  SECOKD  EDITION. 


The  ten  years  which  have  passed  since  the  publication  of 
the  first  edition  have  demonstrated  the  fact  that  some  new 
subjects  should  be  added  to  make  the  book  more  complete. 
This  work  has  been  done,  and  in  the  present  edition  the 
subjects  of  Bankruptcy,  Domestic  Relations,  Suretyship,  Per- 
petuities and  Restraints  on  Alienation  have  been  added.  The 
article  on  the  iSTevv  York  Code  has  also  been  revised  to  con- 
form to  the  amendments  passed  since  1899. 

The  increased  duties  of  active  practice  have  made  it  im- 
possible for  the  authors  to  prepare  this  new  material  without 
a  delay  which  seemed  undesirable,  and  they  desire  to  express 
their  indebtedness  to  Mr.  John  W.  Griffin,  of  the  New  York 
Bar,  for  his  assistance  in  writing  the  articles  on  Suretyship, 
Perpetuities,  and  Restraints  on  Alienation  and  in  revising 
the  article  on  the  New  York  Code;  to  Mr.  John  W.  Banks,  of 
the  Connecticut  Bar,  for  his  assistance  in  preparing  the  article 
on  Bankruptcy,  and  to  Mr.  David  S.  Day,  of  the  Connecticut 
Bar,  for  his  assistance  in  preparing  the  article  on  Domestic 
Relations. 

The  authors  wish  also  to  make  acknowledgment  of  their 
indebtedness  to  the  professors  at  the  different  law  schools  for 
their  encouragement.  The  belief  that  a  book  of  this  kind  had 
a  legitimate  field  has  been  justified  by  the  approval  of  legal 
instructors  who  are  known  the  country  over  for  the  singleness 
of  their  purpose  to  train  their  students  thoroughly,  and  to 
equip  them  as  fully  as  possible  for  the  exacting  work  of 
the  profession.  The  approval  of  such  critics  has  made  the 
years  spent  upon  the  original  work  a  very  pleasant  memory, 
and  the  acknowledgment  of  help  from  the  younger  men,  who 
have  put  the  book  to  a  practical  test,  has  been  scarcely  less 
encouraging. 


vi  PREFACE  TO  THE  SECOND  EDITION. 

It  is  hoped  that  the  enlarged  edition  may  be  still  more 
helpful  to  the  students  of  the  present  day  in  preparing  them- 
selves —  not  only  for  the  passing  of  their  Bar  examinations, 
but  for  the  successful  and  useful  accomplishment  of  their  life 
work. 

March  25,  1909. 

C.  S.  H., 
A.  M.  M. 


CONTENTS. 


AGEXCY. 

Page. 
I.  WHAT  ACTS  CANNOT  BE  DONE  BY  AX  AGENT 1 

II.    WHO   MAY   BE   A   PRINCIPAL 1 

III.    WHO   MAY  BE   AN    AGENT  , 2 

IV.    C'ONFEBRING   AUTHOBITY   TO  EXECUTE  INSTBUMENTS   UNDER   SEAL...          2 

«  V.  CONFESSING    AUTHOBITY    GENEBALLY.    ACTUAL    AND    INCIDENTAL 

AUTHORITY 2 

VI.  SUBSTANTIAL  PERFORMANCE  OF  AUTHOBITY 3 

VII.  SUBSTITUTION.     DELEGATING  AUTHOBITY 4 

VIII.  RATIFICATION 5 

a.  Generally. 

b.  Time  of  ratification. 

c.  Attempt  to  ratify  in  part. 

d.  Oral  ratification  of  instrument  under  seal. 

e.  Ratification  without  full  knowledge. 

f.  As  to  what  constitutes  ratification. 

IX.   MODE  OF  EXECUTING  AUTHORITY.      FOBM  OF  SIGNATUBE 9 

a.  Contracts  under  seal. 

b.  Negotiable  paper. 

c.  Simple,  written  and  oral,  contracts. 

X.  LIABILITY  OF  A  PBINCIPAL  FOB  THE  TORTS  OF  HIS  AGENT 10 

a.  When  the  relation  of  principal  and  agent  exists. 

b.  What  acts  are  within  the  scope  of  the  agency. 

c.  The  independent  contractor  doctrine. 

XI.   AS    TO   CRIMINAL    LIABILITY   OF    A   PRINCIPAL   FOB    THE   ACTS    OF   AN 

AGENT 13 

XII.  LIABILITY  OF  PRINCIPAL  FOR  INJURY  OCCASIONED  TO  A  SERVANT 

BY  ACT  OF  A  FELLOW- SERVANT 13 

a.  Generally. 

b.  Who  is  a  servant  within  the  meaning  of  the  fellow-servant 

rule. 

c.  Vice-principal  —  alter  ego. 

d.  Duty  of  a  principal  to  supply  suitable  appliances. 

e.  Duty  of  a  principal  to  select  competent  agents  and  to  pro- 

vide a  sufficient  number  of  them. 

f.  Agent's  knowledge  of  defects. 

g.  Decisions  under  statutes  modifying  the  common-law  rule. 

XIII.  UNDISCLOSED  PRINCIPAL 17 

[vii] 


viii  CONTENTS. 

Page. 
XIV.  TERMINATION  OF  THE  AGENCY 18 

a.  Revocation  by  principal. 

b.  Revocation  by  death. 

c.  Revocation  by  insanity. 

d.  Revocation  by  bankruptcy. 

e.  Revocation  by  war. 

XV.  RIGHTS  AND  LIABILITIES  OF  PRINCIPAL  AND  AGENT  INTEB  SE 20 

a.  Generally. 

b.  Agent  acting  under  del  credere  commission. 

c.  Bad  faitli  of  agent.     Inconsistent  positions  and  secret  profits. 

d.  Agent's  right  to  compensation. 

XVI.  RIGHT  OF  PRINCIPAL  TO  RESCIND 24 

BANKRUPTCY. 

I.  JURISDICTION  26 

II.  VOLUNTARY  PROCEEDINGS 26 

a.  How  instituted. 

b.  Partnership  proceedings. 

III.  INVOLUNTARY  PROCEEDINGS 27 

IV.  PROVABLE  DEBTS 28 

V.  ELECTION  OF  TRUSTEE 29 

VI.  TITLE  OF  TRUSTEE 30 

VII.  EXEMPTIONS 31 

VIII.  EXAMINATION  OF  BANKRUPT 32 

IX.  PREFERENCES  AND  LIENS 32 

X.  SALE  OF  ASSETS 33 

XI.  DISTRIBUTION  OF  THE  ESTATE 34 

a.  Priority  claims. 

b.  Payment  of  dividends. 

XII.  COMPOSITIONS 35 

XIII.  DISCHARGE 35 

a.  Grounds  of  opposition. 

b.  Debts  affected  by  a  discharge. 

XIV.  SUMMARY  PROCEEDINGS 37 

XV.  CONTEMPT  PROCEEDINGS 38 

XVI.  APPELLATE  PROCEEDINGS 38 

BILLS  AND  NOTES. 

I.    IN   GENERAL  .    40 

II.  ACCEPTANCE   43 

III.  INDORSEMENT 44 

IV.  TRANSFER 46 

a.  Delivery. 

b.  Purchaser  for  value  without  notice. 

c.  Transfer  of  overdue  paper. 

V.  DISCHARGE;  INCLUDING  PAYMENT  AND  RE-TRANSFEB 51 

a.  Discharge. 

b.  Payment. 

c.  Re-transfer. 


CONTENTS.  ix 

Page. 
VI.  PRESENTMENT  FOB  PAYMENT;  PROTEST,  AND  NOTICE  OF  DISHONOR.  .     56 

a.  Presentment  for  payment. 

b.  Protest. 

c.  Notice  of  dishonor. 

CARRIERS. 
I.  CARRIAGE  OF  GOODS 61 

a.  In  general. 

b.  The  carrier's  liability  for  loss. 

1.  In  general. 

2.  Exceptions  to  the  rule. 

3.  Liability  for  delay  or  deviation. 

4.  Express  limitations  of  the  absolute  liability. 
C.  Delivery  by  the  carrier. 

1.  Termination  of  liability  as  carrier. 

2.  Delivery  to  the  consignee. 

d.  Remedies. 

1.  Against  the  carrier. 

2.  The  carrier's  compensation. 

e.  Miscellaneous  topics. 

H.  CARRIAGE  OF  PASSENGERS 72 

a.  Who  are  passengers. 

b.  Liability  to  passengers  for  injury. 

c.  Baggage. 

d.  Tickets  and  regulations. 

CONSTITUTIONAL  LAW. 

I.  "  CITIZENS  "  AND  "  PERSONS  " 76 

II.  "  DUE  PROCESS  OF  LAW  " 77 

III.  THE  POLICE  POWER 80 

IV.  THE   RIGHT    OF  EMINENT   DOMAIN 83 

V.  TAXATION   86 

VI.    EX  POST  FACTO  AND  RETROACTIVE  LAWS 87 

VII.  STATE  LAWS  IMPAIRING  THE  OBLIGATION  OF  CONTRACTS 88 

VIII.    THE   REGULATION    OF   COMMERCE 89 

CONTRACTS. 

I.  PARTIES  CAPABLE  OF  CONTRACTING 91 

II.  CLASSIFICATION  OF  CONTRACTS 91 

IIL  MUTUAL  CONSENT 92 

IV.  CONSIDERATION 96 

a.  In  general. 

b.  Sufficiency  of  consideration. 

c.  Moral  consideration. 

d.  Executed  consideration. 

e.  Consideration  void  in  part. 

V.  CONTRACTS  i  OR  BENEFIT  OF  THIRD  PERSONS 103 

VI.  ASSIGNMENT  OF  CONTRACTS..  .   104 


:  CONTENTS. 

Page. 
VII.  CONDITIONAL  CONTRACTS 105 

a.  Generally. 

b.  Conditions  precedent. 

c.  Warranties  as  conditions. 

d.  Breach  of  conditions. 

e.  Part  performance  and  breach  in  limine. 

f.  Divisible  contracts. 

g.  Waiver  of  performance.     Anticipatory  breach. 
h.  Contracts  conditional  upon  notice. 

VIII.  CONTRACTS  IMPOSSIBLE  OF  PERFORMANCE 118 

IX.  ILLEGAL  CONTRACTS 119 

a.  In  restraint  of  trade. 

b.  Wagering  contracts. 

CORPORATIONS. 

I.   IN  GENERAL 123 

a.  Nature. 

b.  Creation. 

c.  Construction  of  charters. 

d.  General  powers. 

e.  Dissolution. 

f.  Torts  and  crimes. 

II.  LEGISLATIVE  CONTROL 131 

a.  Charter  as  a  contract  between  the  State  and  the  corporation. 

b.  Control  by   legislature   when   power    is   reserved  to   amend, 

alter  or  repeal  the  charter. 

III.  VALIDITY  OF  UNAUTHORIZED  CORPORATE  ACTS   (ULTRA  VIRES) 133 

IV.  RIGHTS  OF  SHAREHOLDERS 137 

a.  Power  of  majority. 

b.  Right  of  shareholder  to  sue  on  behalf  of  corporation. 

c.  Transfer  and  its  effect;  and  other  rights. 

V.  RIGHTS  OF  CREDITORS 141 

a.  With  respect  to  the  capital. 

b.  Right  to  compel  payment  of  stock  subscriptions  in  full. 

c.  Statutory   liability  of   stockholders   for   corporate   debts,   in 

excess  of  subscriptions  for  shares. 
VI.  MUNICIPAL  CORPORATIONS 146 

a.  In  general. 

b.  Liability  in  tort. 

c.  Liability  for  money  borrowed  or  other  benefits  received. 

CRIMINAL  LAW. 

I.  GENERALLY 153 

II.  OFFENSES  AGAINST  THE  GOVERNMENT 156 

a.  Bribery. 

b.  Perjury. 

c.  Contempt  of  court. 


CONTEXTS.  xi 

Page. 

III.  OFFENSES  AGAINST  THE  PUBLIC  PEACE,  HEALTH  /ND  ECONOMY....   158 

a.  Affray. 

b.  Riot. 

c.  Libel  and  slander. 

d.  Nuisance. 

e.  Conspiracy. 

IV.  OFFENSES  AGAINST  THE  PERSON 160 

a.  Assault  and  battery. 

b.  Mayhem. 

c.  Homicide. 

d.  False  imprisonment. 

e.  Rape. 

f.  Robbery. 

V.  OFFENSES  AGAINST  THE  DWELLING-HOUSE 163 

a.  Arson. 

b.  Burglary. 

VI.  OFFENSES  AGAINST  PBOPEBTY 166 

a.  Larceny. 

b.  Embezzlement. 

c.  False  pretenses. 

d.  Receiving  stolen  goods. 

e.  Forgery. 

VII.  CRIMINAL  PROCEDURE 175 

DAMAGES. 

I.  NOMINAL  DAMAGES 179 

II.  REMOTE  DAMAGES 179 

III.  PROSPECTIVE  AND  PERMANENT  INJURY 180 

IV.  EXEMPLARY  OR  PUNITIVE  DAMAGES 180 

V.  LIQUIDATED  DAMAGES 182 

VI.  BREACHES  OF  CONTRACT 183 

VII.  PROFITS  185 

VIII.  INJURY  TO  PROPERTY : 185 

IX.  INJURY  TO  PERSON  186 

a.  Not  causing  death. 

b.  Causing  death. 

X.  SLANDEB  AND  LIBEL 188 

XI.  MALICIOUS  PROSECUTION 183 

XII.  SPECIAL  DAMAGES  188 

XIII.  EVIDENCE 189 

DOMESTIC  RELATIONS. 
I.  MARRIAGE   190 

a.  Reality  of  consent. 

b.  Solemnization. 

c.  Parties  to  the  marriage  contract. 

I.  In  general. 
II.  Mental  incapacity. 


xii  CONTENTS. 

I.  MARRIAGE  —  Continued:  Page. 

c.  Parties  to  the  marriage  contract  —  Continued: 

III.  Consanguinity  and  affinity. 

IV.  Previous  chastity. 

d.  Duress. 

e.  Conflict  of  laws. 

II.  DIVORCE 193 

a.  Legislative  divorce. 

b.  Jurisdiction. 

c.  Cruelty. 

d.  Desertion. 

e.  Default,  collusion  and  connivance. 

f.  Condonation  and  recrimination. 

III.  HUSBAND  AND  WIFE 197 

a.  The  incapacity  of  a  married  woman  at  common  law  to  con- 

tract or  convey  property. 

b.  The  husband's  right  to  the  property  of  his  wife. 

1.  Real  estate. 

2.  Personal  estate. 

c.  Wife's  separate  estate  in  equity. 

d.  Certain  rights  and  equities  of  a  wife  under  modern  statutes. 

1.  Right  to  contract. 

2.  Right  to  maintain  suit. 

3.  Separate  earnings. 

.      4.  Right  of  husband  to  sue  wife  and  vice  versa. 

e.  Liability  of  a  husband  for  purchases  of  his  wife  upon  his 

credit. 

f.  Rights   and  liabilities  of  husband  and  wife   independent  of 

contract. 

1.  Torts. 

2.  Crimes  of  a  married  woman. 

3.  Husband  and  wife  as  witnesses  for  and  against   each 

other. 

IV.  PARENT  AND  CHILD 202 

a.  The  right  of  custody. 

b.  The  parent's  liability  for  necessaries  furnished  to  his  minor 

child. 

c.  Torts  to  the  child. 

d.  Torts  of  the  child. 

e.  Illegitimate  children. 

V.  INFANTS   204 

a.  Civil  rights  and  liabilities  of  an  infant. 

1.  Capacity  to  act  as  a  public  officer. 

2.  Liability  for  crime. 

3.  Liability  of  an  infant  for  his  torts. 

4.  Liability  of  an  infant  for  necessaries. 

b.  Contracts  and  conveyances  of  an  infant. 

1.  In  general. 

2.  Affirmance  and  disaffirmance. 


CONTENTS.  xiii 

EQUITY.  Page. 

I.  IN  GENERAL 208 

II.  ACCIDENT,  MISTAKE  AND  FBAUD 212 

III.  SPECIFIC  PERFORMANCE 214 

IV.  INJUNCTIONS  215 

EVIDENCE. 

I.    IN   GENI.HAL 216 

a.  Judicial  notice. 

b.  Burden  of  proof. 

c.  Presumptions. 

d.  Admissions  and  confessions. 

e.  Law  and  fact. 

II.  LEADING  RULICS  OF  EXCLUSION 221 

a.  Matters  likely  to  mislead  the  jury  or  complicate  the  case 

and  those  of  conjectural  significance. 

b.  Character  of  parties. 

c.  Rule  against  hearsay  and  exceptions. 

d.  Opinion. 

III.  WRITINGS   229 

a.  Proof  of  contents. 

b.  Proof  of  authorship. 

c.  Alterations. 

d.  The  "  parol  evidence  "  rule. 

IV.  WITNESSES  234 

INSURANCE. 

I.  GENERALLY  237 

II.  WARRANTY,  REPRESENTATION  AND  CONCEALMENT 237 

III.  INSUEABLE  INTEREST 239 

IV.  INSURANCE  AGENTS 241 

V.  REINSURANCE  243 

VI.  REMEDIES 244 

PARTNERSHIP. 

I.  THE  CREATION  OF  A  PARTNERSHIP 247 

II.  QUASI  OR  NOMINAL  PARTNERS 250 

III.  PARTNERSHIP  PROPERTY  AND  THE  INTEREST  OF  A  PARTNER 

THEREIN  250 

a.  Whether  a  partnership  can  hold  the  legal  title  to  property. 

b.  Survivorship  of  the  legal  title. 

c.  The  partner's  interest  in  firm  property. 

d.  Transfer  of  a  partner's  interest. 

e.  The    interest    passing   to    the    representative    of    a    deceased 

partner. 

f.  The  interest  passing  to  the  assignee  of  a  bankrupt  partner. 

g.  What   interest   can  be  readied  by  the   partnership  creditors 

and  the  separate  creditors  of  a  partner  respectively. 


xiv  CONTEXTS. 

Page. 
IV.  THE    SEPARATE    PROPERTY    OF    A    PARTNER,    AS    AFFECTED    BY    THE 

PARTNERSHIP   RELATION 255 

a.  Its  liability  to  process  in  actions  for  firm  debts. 

b.  Distribution  of  the  separate  property  of  a  bankrupt  partner. 

c.  Distribution  of  the  separate  property  of  a  deceased  partner. 

V.   THE   RELATION    OF    DEBTOR   AND    CREDITOR    BETWEEN    A    PARTNERSHIP 

AND    A    PARTNER 256 

a.  Where  a  partner  is  debtor  to  the  partnership. 

b.  Where  a  partner  is  creditor  of  the  firm. 

VI. 'RELATION  OF  DEBTOR  AND  CREDITOR  BETWEEN  TWO  FIRMS  HAVING 

A  COMMON   PARTNER 258 

VII.  ACTIONS  BETWEEN  A  PARTNER  AND  HIS  COPARTNERS 258 

a.  A  partner  cannot  sue  a  copartner  upon  a  partnership  claim 

or  partnership  liability. 

b.  A  partner  may  sue  a  copartner  upon  a  personal  claim. 

c.  A  partner  cannot  prove  in  the  bankruptcy  of  a  copartner  in 

competition  with  firm  creditors. 
VIII.  POWER  OF  A  PARTNER  TO  ACT  IN  BEHALF  OF  THE  FIRM 259 

a.  Sealed  instruments. 

b.  Bills  and  notes. 

c.  Simple  contracts. 

d.  Judicial   proceedings. 

e.  Liability  of  firm  for  breaches  of  trust. 

f.  Dissolution. 

g.  Winding  up  a  firm. 

h.  Duties  of  a  partner  to  his  firm, 
i.  Special  partner. 

PLEADING  AT  COMMON  LAW. 

I.  FORMS  OF  ACTIONS 274 

II.  THE  PLEADINGS 277 

a.  Generally. 

b.  Demurrers. 

1.  General  rules. 

2.  Effect  of  demurrer  in  opening  the  record. 

c.  Dilatory  pleas. 

d.  Traverse. 

e.  General  issue  and  specific  traverse. 

1.  Special  assumpsit. 

2.  General  assumpsit. 

3.  Debt. 

4.  Trespass. 

5.  Trover. 

6.  Detinue. 

7.  Replevin. 

8.  Case. 

f.  Special  traverse. 


CONTEXTS.  xv 

II.  THE  PLEADINGS —  Continued:  Page, 

g.  Replication  de  injuria. 
h.  Confession  and  avoidance. 
i.  Pleas  in  excuse. 

1.  Special  assumpsit, 

2.  General  assumpsit. 

3.  Debt. 

4.  Trespass. 

5.  Trover. 

6.  Detinue. 

7.  Case. 

III.  DUPLICITY 289 

IV.  DEPABTUBE 289 

V.  NEW   ASSIGNMENT    290 

VI.  MOTIONS  BASED  ON  THE  PLEADINGS 291 

a.  Arrest  of  judgment. 

b.  A'on  obstante  veredicto. 

c.  Repleader. 

PROPERTY;    PERSONAL. 

I.  NATURE 293 

II.  ACQUISITION 293 

a.  By   operation  of   law. 

b.  By  act  of  the   parties. 

III.  POSSESSION   295 

a.  Judicial  process. 

b.  Bailment. 

PROPERTY;  REAL. 

I.  TENURE  AND  ESTATES 298 

II.  ACQUISITION  OF  TITLE  WITHOUT  A  CONVEYANCE 302 

a.  By  operation  of  law. 

b.  By  operation  of  law  against  the  will  of  the  former  owner. 

III.  TITLE  BY  VOLUNTARY  CONVEYANCE  INTEB  vrvos 306 

a.  Form  of  conveyance. 

b.  Description  of   property  conveyed. 

c.  Incidents  of  leasehold  interests. 

d.  Incorporeal   hereditaments. 

e.  Covenants  in  deeds. 

f.  Execution  of  deeds. 

g.  Estoppel, 
h.  Dedication. 

IV.  RIGHTS  IN  LAND  OF  OTHERS 316 

V.    WILLS     AND    ADMINISTRATION 319 

a.  In  general. 

b.  Fraud  and  undue  influence. 

c.  Incorporation  by  reference. 

d.  Competency  of  witnesses. 

e.  Attestation. 


xvi  CONTEXTS. 

V.  WILLS  AND  ADMINISTRATION  —  Continued :  Page. 

f.  Revocation. 

g.  Probate  and  administration, 
h.  Legacies   and  devises. 

VI.  MISCELLANEOUS  TOPICS;  INCLUDING  FIXTUBES  AND  MORTGAGES..  329 

a.  Fixtures. 

b.  Mortgages. 

c.  Emblements. 

d.  Ejectment. 

e.  Waste. 

f.  Eviction. 

VII.  RESTRAINTS  ON  ALIENATION 336 

VIII.   RULE   AGAINST   PERPETUITIES 341 

QUASI  CONTRACTS. 
I.  NATURE  OF  THE  OBLIGATION 346 

II.  FAILURE  OF  CONSIDERATION , 347 

a.  Mistake. 

1.  Mistake  of  law  or  fact. 

2.  Mistake  as  to  validity. 

3.  Mistake  as  to  title. 

4.  Mistake  as  to  existence  of  subject-matter. 

b.  Failure  of  defendant  to  perform  contract. 

1.  Defendant  relying  upon  Statute  of  Frauds. 

2.  Performance  impossible. 

3.  Defendant  relying  upon  illegality  of  contract. 

4.  Failure  to  perform  wilful  or  without  excuse. 

c.  Failure  of  plaintiff  to  perform  contract. 

1.  Failure  in  condition  of  contract. 

2.  Plaintiff  relying  upon  Statute  of  Frauds. 

3.  Plaintiff's   performance   impossible. 

III.  BENEFIT  CONFERRED  WITHOUT  REQUEST 355 

a.  Intentionally. 

b.  Unintentionally. 

IV.  BENEFITS  CONFERRED  AT  BEQUEST,  BUT  NOT  IN  PERFORMANCE  OF 

CONTRACT 356 

V.  WAIVES  OF  TORT 357 

VI.  RECOVERY  OF  MONEY  PAID  BY  COMPULSION 35& 

a, 'Under  legal   process. 

b.  To  avoid  injury  to  plaintiff's  business. 

c.  To  induce  the  performance  of  a  duty. 

SALES. 

I.  GENERALLY 360 

II.  SALE  DISTINGUISHED  FROM  OTHER  CONTRACTS 362 

a.  From  bailments. 

b.  From  pledge  or  mortgage. 

c.  From  consignment. 

III.  THE  PASSING  OF  TITLE .   365 


CONTEXTS.  xvii 

Page. 
IV.  RULES  FOB  CONSTRUING  INTENTION  AS  TO  THE  PASSING  OF  TITLE..  364 

a.  Sale  of  specific  chattel  unconditionally. 

b.  Sale  of  specific  chattel  conditionally. 

c.  Where  chattels  are  not  specified. 

1.  Generally. 

2.  Part  of  a  uniform  mass. 

3.  Subsequent  appropriation. 

4.  Goods  to  be  manufactured. 

d.  Reservation  of  jus  disponendi. 

V.  PLACE  WHERE  SALE  TAKES  PLACE 368 

VI.  PEBFORMANCE  OF  THE  CONTRACT 368 

a.  Delivery. 

1.  Place. 

2.  Time  of  delivery. 

3.  Right  to   inspect. 

4.  Delivery  by  installmenta. 

5.  Constructive  delivery. 

b.  Acceptance. 

VII.  AVOIDANCE  OF  THE  CONTRACT 373 

VIII.  BREACH  OF  THE  CONTRACT 373 

a.  By  the  seller. 

1.  Generally. 

2.  Breach  of  warranty. 

b.  By  the  buyer. 

IX.  CONDITIONAL  SALES   380 

a.  Distinguished   from   bailment,   lease,  mortgage  and  consign- 

ment. 

b.  Conditions  to  passage  of  title. 

c.  Rights  of  third  parties. 

X.   BONA    FIDE    PURCHASERS 384 

XI.  STOPPAGE  IN  TRANSITU 385 

XII.  STATUTE  OF  FRAUDS 388 

a.  In  general. 

b.  •'  Goods,  wares  and  merchandise." 

c.  "  Price   of  ten  pounds." 

d.  Acceptance  and  actual  receipt. 

e.  "  Earnest  "  and  "  part  payment." 

f.  "  Xote  or  memorandum  in  writing." 

g.  "  Agents." 

h.  Effect  of  statute. 

XIII.  FRAUD 396 

XIV.  FACTORS'   ACTS    397 

SURETYSHIP. 

I.  NATURE  OF  CONTRACT 400 

II.  NOTICE    OF    ACCEPTANCE    OF    GUARANTY    AND    OF    DEFAULT    BY    THE 

PRINCIPAL 402 

III.  STATUTE   OF   FRAUDS  . ,  .  404 


xviii  CONTENTS. 

Page. 
IV.  RIGHTS  OF  SUBETY  IN  CONNECTION  WITH  AND  AFTEB  PAYMENT 408 

V.   DlSCHABGE    OF     SUBETY 413 

1.  Use  of  principal's  defenses. 

2.  The  giving  of  time  to  the  principal  debtor. 

3.  Creditor's  loss  of  security. 

4.  Alteration  of  contract  or  change  in  circumstances  affecting 

risk. 

5.  Fraud,  misrepresentation  or  concealment  of  material  facts. 

6.  Notice  of  revocation  or  death  of  surety. 

TORTS. 
I.  NATUBE  AND  CLASSIFICATION  OF  TOBTS 428 

II.   TOBTS    AFFECTING    THE    PERSON 430 

a.  Assault  and  battery. 

b.  Consent. 

c.  Accident. 

d.  Duress. 

e.  Self-defense  —  short  of  endangering   life. 

f.  Protection  of  property  —  short  of  endangering  life. 

g.  Use  of  force  in  defending  person  or  property  to  an  extent 

endangering  human  life. 

h.  Recaption  of  personalty. 

i.  Use  of  force  to  regain  realty. 

j.  Liability  of  vendor  of  chattels  to  other  parties  than  his  im- 
mediate vendee,  but  caused  by  his  negligence. 

k.  Duty  of  care  on  part  of  occupier  of  land  or  buildings. 

1.  Towards  persons  on  highway  adjacent. 

2.  Towards  a   trespasser. 

3.  Towards  licensees  and  invited  persons. 
1.  Injuries  by  animals. 

m.  Defamation, 
n.  Malicious  prosecution. 

III.  TOBTS    AFFECTING    PEBSONAL    LIBEBTY 441 

a.  Imprisonment. 

b.  Arrest  without  warrant. 

IV.  TOBTS     AFFECTING    BEALTY 442 

a.  Trespass. 

b.  Necessity. 

c.  Acting  at  peril.     Duty  of  insuring  safety. 

d.  Liability  for  fire  and  explosives. 

V.   TOBTS    AFFECTING    PEBSONALTY 445 

a.  Trespass. 

b.  Conversion. 

c.  Necessity. 

VI.  TRESPASS  AB  INITIO 447 

a.  Trespass  affecting  the  person. 

b.  Trespass  affecting  realty. 

C.  Trespass  affecting  personalty. 


CONTENTS.  xix 

Page. 
VII.  DEFENSE   AND    JUSTIFICATION 448 

a.  Defense  that  plaintiff  was  a  wrongdoer. 

b.  Justification.     Defendant  acting  in  a  judicial  capacity. 

c.  Justification.     That   defendant  was   an  officer   acting  under 

process. 

VI II.  PROXIMATE  CAUSE    450 

IX.  NEGLIGENCE.     STANDARD  OF  CARE.     DEGREES  OF  NEGLIGENCE 451 

X.  CONTRIBUTORY  NEGLIGENCE    452 

XI.  DECEIT 453 

TRUSTS. 
I.  GENERAL  NATURE  OF  TRUSTS 456 

II.   A   TRUST    DISTINGUISHED 457 

a.  From  a  debt. 

b.  From  an   assignment. 

c.  From  an  executorship. 

III.  CREATION  OF  A  TRUST 459 

a.  By  declaration,  without  transfer. 

b.  By  transfer  to  another  with  a  declaration  of  a  trust  for  a 

third  person. 

c.  Constructive  trusts. 

d.  Effect  of  Statute  of  Frauds. 

IV.  THE   TRUSTEE    461 

V.  THE  CESTUI  QUE  TRUST 462 

VI.  TRANSFER  OF  THE  TRUST  PROPERTY 463 

a.  By  the  trustee. 

b.  Transfer  of  the  equitable  interest  by  the  cestui. 

c.  Death  of  trustee  or  cestui  que  trust. 

d.  Bankruptcy. 

VII.  ADMINISTRATION   OF   TRUST 467 

a.  In  general. 

b.  Remedies. 

PLEADING    AND    PRACTICE    UNDER    NEW    YORK    CODE    OF    CIVIL 

PROCEDURE. 
I.  PLEADINGS 471 

a.  Summons. 

b.  Complaint. 

c.  Verification. 

d.  Notice  of  appearance. 

e.  Demurrer. 

f.  Answer. 

g.  Counterclaim. 
h.  Reply. 

i.  General  provisions  as  to  pleadings. 

1.  Frivolous  pleading. 

2.  Amendments. 


xx  CONTENTS. 

Page. 

II.   MOTION   ON    THE   PLEADINGS 487 

III.  PARTIES 487 

IV.  BILLS  OF  PABTICULABS 489 

V.  SUBPOENA  490 

VI.  TENDEB 490 

VII.  OFFEB  OF  JUDGMENT ". 491 

VIII.  TIME 491 

IX.  PBOVISIONAL  BEMEDIES    493 

a.  Arrest. 

b.  Injunction. 

c.  Attachment. 

1.  When  granted. 

2.  The  affidavit. 

3.  Jurisdiction. 

4.  Vacating  or  modifying  the  warrant. 

5.  Attachment  of  partnership  property. 

d.  Replevin. 

1.  Necessary  papers. 

2.  The  affidavit. 

3.  Rights  of  the  defendant. 

e.  Receivers. 

f.  Deposit,  delivery  or  conveyance  of  property. 

X.  Lis   PENDENS    506 

XI.    ISTEBPLEADEB 506 

XII.  EVIDENCE 507 

XIII.  TRIALS  ;  INCLUDING  JURORS  AND  JUBIES 508 

XIV.  ACTIONS  BY  STATE  WBITS 510 

a.  Habeas  corpus  to  testify. 

b.  Habeas  corpus  and  certiorari  to   inquire  into  cause  of  de- 

tention. 

c.  Mandamus. 

d.  Prohibition. 

e.  Assessment  of  damages. 

f.  Certiorari  to  review. 

XV.  ABBITRATION 516 

XVI.    SUPPLEMENTABY    PROCEEDINGS     516 

XVII.  LIMITATION  OF  ACTIONS 517 

XVIII.  EXECUTIONS 522 

XIX.  APPEALS 524 

a.  Generally. 

b.  To  the  Court  of  Appeals. 

c.  To  the  Appellate   Division. 

d.  To  the  Supreme  Court. 

XX.  MISCELLANEOUS  PROVISIONS .  530 


TABLE  OF  CASES. 


Page. 

Abel!  v.  Howe ' 4G3 

Abrath  v.  R.  R.  Co 217 

Ackert  v.  Barker 122 

Acklev  v.  Tarbox 200 

Ackro'yd   v.   Smith 313 

Adams  v.  Helm 372 

v.  Kellogg 321 

v.  Lindsell 93 

v.  Messenger 374 

v.  Palmer 190,  194 

v.  Tutton 259 

Addington  v.  Allen 453,  454 

Co..  v.  Bank 458 

Ins.  Co.  v.  France 240 

v.  Jackson 240 

v.  Maguire 246 

Agacio  v.  Forbes 267 

Agate  v.  Lowenbein 335 

Alabama,  etc.,  Ins.  Co.  v.  Oliver..  395 

Alden  v.  R.  R.  Co 73 

Aldrich  v.  Bennett 202 

v.  R.  R.  Co.   . 11 

Aldridge  v.   Johnson 3tio 

Alexander  v.  Alexander 197 

v.  Barker 207 

v.  Continental  Ins.  Co.  239 

v.   Lane 325 

v.  Thomas 41 

v.  Swackhamer 397 

Alger  v.  Thacher 120 

Allan  v.   Gomme 317 

Allen  v.  Baker.  . 110 

v.  Crofoot 447 

v.  Dundas 320 

v.  Ford 358 

v.  Hooper 199 

v.  Maddock    323 

v.  O'Donald 416 

v.  Pike    403 

v.  Rundle 404 

v.  Sewell 140 

v.  Stevens 344 

Allison    v.    Chicago,    etc.,    R.    R. 

Co 187 

Allsop  v.  Allsop 429 

Althorf  -v.  Wolfe 10,  14 

American  Bank  v.  Baker 415 

v.  Jenness 50 

v.  Voisen.  .          ,.  500 


Page. 

American  Biscuit  Co.  v.  Klotz...    120 
Amer.  Bonding  Co.  v.  Logansport 

etc.,  Gas  Co 412 

American  Express  Co.  v.  Stack .  .      67     • 
American,    etc.,    Ins.    Co.    v.    Mc- 

Crea 243 

American    Freehold,    etc.,    CD.    v. 

Dyker 206 

Amer.    Surety    Co.    v.    Lawrence- 

ville  Cement  Co 412 

Ames  v.  Maclay 413,  414 

v.  Moir 183 

Amies  v.  Stevens 62 

Ani*inck  v.  Bean 256 

Anchor  Line  v.  Dater '  65 

Anchor  Milling  Co.  v.  Walsh.  .  .  .   226 

Ancona  v.  Marks 9 

Anderson  v.  Bellenger 420 

Anderson,  In  re 38 

v.  Bennett 15 

Andrews  v.  Durant 365 

v.  Partington 345 

Anon 280,  285,  289 

Anstedt  v.  Sutter 372 

Antisdel  v.  Williamson.. 4 17,  419,  420 

Appleby  v.  Myers 355 

Arendale  v.  Morgan 384 

Argenti  v.  San  Francisco 151 

Arguello,  In  re 468 

Arkansas  Co.  v.  Belden  Co. 105 

Armentrout  v.  R.  R.  Co 67 

Armstrong  Co.  v.  Clarion  Co ....   429 

Arndt  v.  Griggs .- 469 

Arnold  v.  Sprague 43 

Arnot  v.  Pittston,  etc.,  Coal  Co..    120 

Artcher  v.  Zeb 393 

Arteaga  v.  Conner 496 

Arthur  v.  Insurance  Co 245 

Ashbury  Co.  v.  Riche 135 

Ashby  v.  West 362 

v.  White 179 

Ashmore  v.  Steam,  etc.,  Co 61 

Atchison  v.  Twine •  187 

Atherton  v.   Atherton 195 

Atkinson   v.   Medford 192 

Atlantic   &    G.    W.    R.   R.    Co.   v. 

Dunn 181 

Atlas  Bk..  v.  Brownell 422 

Atlee  v.  Fink .  .  ...     25 


XX11 


TABLE  OF  CASES. 


Tage. 
Attorney-General  v.  Aqueduct 

Corp 129 

Attorney-General  v.  Guardian, 

etc.,  Ins.  Co • 239 

Attorney-General  v.  Ice  Co 129 

Atwater  v.  Hough 390 

Atwood  v.  Holeomb 202 

v.  Lucas 369 

At\vool  v.  Merriweather 138 

Aubin  v.  Daly 293 

Auburn,  etc.,  Plank  Road  Co.  v. 

Douglass 444 

Aiulenried  v.  Betteley 20 

Auer  v.  Penn 308 

Auerbach  v.  R.  R.  Co 75 

Augusta  v.  Winsor 227 

Austerberry  v.  Oldham 314 

•Austin  v.  Bostwick 266 

Averett  v.  Booker 43 

Ayres  v.  Chicago,  etc.,  R.  R.  Co..  97 

Azemar  v.  Casella 375 

B. 

Babcock  v.  Bonnell 385 

Bachelder  v.   Hcagan 445 

Backus  v.  McCoy 312 

Bacon  v.  Robertson 132 

v.  Towne 224 

.  Baddeley  v.  Earl  Granville 16 

Badenfeld  v.  Mass.  Ace.  Assn....  108 

Badger  v.  Daenieke 267 

Bad'ische,  etc.,   Fabrik  v.   Schott.  120 

Baggett  v.   Meux 339 

Bagley  v.  Cleveland,  etc.,  Co 372 

v.  Peddie 212 

Bailey  v.  Bailey 332 

v.  Bussing 429 

v.  Carleton 305 

v.  De  Crespigny 118 

v.  Do/ier 59 

Bain  v.  Brown 22 

Baker  v.  Baker 193 

Baker  v.  Briggs 416 

Baker  v.  Crandall 326 

Baker   v.  Kenneth 413 

v.   State 168 

Baldwin  v.  Cole 446 

v.   Farnsworth 372 

v.  Gordon 413 

Balfe  v.  West 20 

Bnlfour  v.  Grace 427 

Ball  v.  Pub.  Co 489 

Ballentine  v.  Webb 159 

Ballow  v.  Billings 353 

Baltimore  v.  Board  of  Police.  .  .  .  146 

Baltimore   Co.  v.  Mali 460 

Bancroft  v.  Otis.  . 322 

Bnnsror,  etc.   v.   Brown 310 

Bank  v.  Bank 10,  40,  457,  45S 


Page. 

Bank  v.  Brown 74 

v.  Culver 227 

v.   Hubbell 457 

y.  Law 45 

v.  McChesny 262 

v.  Merrill 42 

v.  Page 262- 

v.   Sawyer 261 

v.   Scovil 458 

v.    Triplett 57 

Bank  Co.  v.  Edson 272 

Bank  of  Batavia  v.  R.  R.  Co 3 

Bank  of  Commerce  v.  Union  Bank  349 

Bank  of  Monroe  v.  Anderson  Co . .  422 

Bank  of  Uniontown  v.  Mackey.  .  .  416 

Bank  of  U.  S.  v.  Sill 51 

Banker  v.  Banker 192 

Banner,  Ex  parte 367 

Barber's   Appeal 218 

Barber  v.   Vincent 279 

Barbier  v.   Connolly 79,  81,  83 

Bardes  v.  Bank 37,  38 

Bare  v.  Hoffman • 170 

Baring  v.   Dix 27t> 

Barker,  Jacob,  Re 467 

Barker  v.  Marine  Ins.  Co 360 

Barkley  v.  Wilcox. 3 IS) 

Barlow  v.   Wainwright 310 

Barnard  v.   Adams 71 

v.  Kellogg 376 

Barned's  Co.,  In  re 458 

Barnes   v.    Barnes 195,  314 

v.  Dist.  of  Columbia 149 

v.  Dow 467 

v.  Gay 466 

v.   Marshall 69 

Barney  v.  Forbes 405 

v.  Saunders 468,  469 

v.  Worthington 43 

Barr  v.  R.  R.  Co 141 

Barrett   v.   Turner 370 

Barrie  v.   Earle 114 

Barrow  v.  Arnaud 378 

Barry  v.  Butlin  218 

v.  Fisher   502 

Barstow  v.  Savage  Mining  Co...  140 

Bartholomae  v.  Paull 371 

Bartholomew  v.  Finnemore ......  207 

Bartlett  v.   Bartlett 198 

v.  Drew 143 

v.  Farrington   335 

v.   Hamilton    20 

v.  Ins.  Co 243 

Bartlett,  etc.,  Coal  Co.  v.  Roach.  .  16 

Barto  v.  Scheneck 46 

Barton  v.   Briscoe 339 

v.  Syracuse 150 

Bnrwick  v.   Ensrlish,  etc.,   Bank..  12 

Baseley  v.  Clarkson 442 


TABLE  OF  CASES. 


YXlll 


Tage. 

Baskin  v.  Baskin 324 

Bass  v.  Clive 349 

Bassell  v.  Elmore 438 

Bassett  v.  Bassett 193 

v.  Hughes 104 

v.  Spoti'ord 69 

Batchelder  v.   Sargent 200 

Bates   v.   Stanton 63 

Bauson  v.  Gosling 415 

Battisworth  v.  Campion 106 

Batty   v.   Carswell 4 

Baxendale  v.   Bennett 51 

Baxter  v.  Camp 217 

v.  Little 51 

Baylor  County  v.  Craig 250 

Beach   v.   Hancock 430 

Beall  v.  January 6 

Boainan   v.    Whitney 251 

Bean  v.  Chaprnan 415 

Bean   v.   Edge 381 

Beaty   v.   Wray 272 

Beaver  Coal  Co.,  In  re 33 

Bechervaise  v.  Lewis 412 

Bechtold   v.   Lyon 403 

Beck  v.  Robley 55 

Beckham  v.   Drake 18 

Beckwith  v.  Philby    442 

v.   Talbot    395 

Beddoe  v.  Wadsworth 315 

Beebe  v.  Bank 55 

v.  Knapp    454 

Beeclier  v.   Conradt 115 

Beer  Co.  v.  Massachusetts 132 

Beers  v.  B.  &  A.  R.  R.  Co 74 

v.  Crowell   391 

Behn  v.   Burness 109,  110 

Bell  v.  Mallory  158 

v.   Martin    53 

v.  McConnell   23 

v.  State   170 

Bellows   v.   Sowles 100 

Bellows    Falls    Bank    v.    Rutland 

Bank 42 

Belt  v.  Lawes 221 

v.  Stetson • 371 

Benham    v.    United    Guar.    &    L. 

Aesn.  Co.    : 423 

Benkert  v.   Benkert 196 

Bennet  v.  Davis li>;» 

Bennett  v.  ,Tud«on 12 

Benson   v.   Remington 202 

Pontlev   v.   Craven 272 

Berkr-lev  Peerage  Case 225 

Berrvltson   v.   Strans 388 

Bernier  v.  Cobat  Mfg.  Co 354 

Berrv  v.  State 169 

Borl  liolf  v.  O'Reilly 82 

Bethune  v.  Dozier 419 

Bibb  v.  State . .  .202 


Page. 

Bibb  v.  Thomas 325 

Bidwell,  Re    257 

Bidwell   v.   Catton 99 

Bierbach  v.  Goodyear  Rubber  Co.  1SD 

Bigelow  v.  Gregory   120 

v.  Stephens    232 

Bilbie  v.  Luinley 347 

Biles  v.   Commonwealth 175 

Billings  v.   Billings 196 

Binghamton  Bridge,  The 127 

Bird  v.  Gammon :  .  .  . .  400 

v.  Jones 441 

Birkley  v.  Presgrave 71 

Birmingham  Xat.   Bank  v.   Brad- 
ley    49 

Birsternd  v.  Farrington 453 

Bishop  v.  Eaton 402,  403 

v.  Holcomb 465 

v.  Palmer 120 

Bissell  v.  Bissell 190 

v.  Gowdy 50 

v.  Michigan,  etc.,  Co.. 134,  136 

Bixbv  v.  Dunlap , 181 

Blackburn  v.  Reilly 115,  382 

Blackman    v.    Pierce 38>> 

Blackstone  v.  Blackstone    328 

v.   Buttermore    18 

Blackwall,  The    71 

Blade  v.  Noland 51 

Blades  v.   Higgs 434 

Blaen     Avon     Coal     Co.     v.     Mc- 

Culloh 185 

Blair,  In  re 33 

Blake  v.  Metzgar 348 

Blakeney  v.  Goode 391 

Blancha'rd  v.  Blood , .  .  198 

v.  Page 68 

v.  Stevens   48 

Blenn  v.  Lyford 56 

Blest  v.  Brown 423 

Blethen  v.  Levering 45 

Blight  v.  Hartnoll 342 

Bliven  v.  R.  R.  Co 63 

Blodgett    v.    Weed 261 

Blood  v.  Howard  Ins.  Co 238 

Blood   Balm   Co.   v.   Cooper 436 

Bloss  v.  Tobey 163 

Blossom  v.  Shotter 369 

Blum  v.  Marks 385 

Blvth      v.      Birmingham      Water 

Works  Co 451 

Boardman   v.   Cutter 391 

Bock   v.    Hea!v 372 

Bodino    v.    Killeen 2 

Bodmnn  v.  Tract  Society 234 

Boggett  v.   Frier .' 198 

Boggs  v.  American  Ins.  Co 23S 

Bond   v.    Fitzpatrick 220 

Bookwalter  v.  Clark 367,  378 


XXIV 


TABLE  OF  CASES. 


Page. 

Boone  v.  Eyre 113 

Booth  v.  Hanley 442 

v.  Mister  10 

v.  Starr 312 

Borries  v.  Bank 17 

Borrowman  v.   Free 369 

Boston  v.  Richardson 226 

Boston,  etc.  v.  Langdon.  .• Izi) 

Boston  Ice  Co.  v.  Potter 355 

Boston  Smelting  Co.  v.  Smith...  248 

Bostwick  v.  Leach 329 

Boswell  v.  Goodwin 465 

Boughton  v.  Boughton 345 

v.  Flint 468 

Boulton  v.  Jones 355 

Boutell  v.  Warne 373 

Bowden   v.    Bowden 429 

Bowen  v.  Newell 42 

Bowery  F.  Ins.  Co.  v.  Ins.  Co ....  243 

Bowin*  v.   Sutherlin 1  267 

Bowles  v.   State 162 

Bowne  v.  Mt.  Holly  Nat.  Bank . .  422 

Box  v.   Jubb 444 

Boyce  v.  Boyce 196 

v.  Rossborough 322 

Boyd  v.  Snyder 403 

Boyden  v.   Boyden 206 

Boyer  v.  Barr 181 

Boylan  v.   R.   R.   Co 75 

Brackett  v.  Griswold 453 

v.  Rich 404 

Bradford  v.   Marbury ;  .  .  369 

Bradhurst  v.  Ins.  Co 71 

Bradley  v.  Ballard   135 

v.  Brigham   359 

v.   Fisher    448 

v.  Heath  438 

v.  McAfee 30 

v.  Peixpto 336 

Bradshaw  v.   Warner 383 

Brady  v.  Todd 3 

Brairir  v.  Danielson 52 

Brailsford  v.  Williams 59 

Brainerd  v.   Brainerd    332 

v.  Cooper    333 

Bramliall  v.  Ferris 336 

Bramlett,  In  re 36 

Branch    v.    Wiseman 254 

Brandon  v.  Robinson.  .  .  .338,  339,  467 

Prnnf    v.    Ehlen 144 

Brattle  «q.  Ph.  v.  Grant 344 

Braunn  v.  Keally 363 

Breed  v.  Hillhouse 56 

Kropn   v.  Richardson 264 

Brenham   v.   Germania   Bank....  151 

Brennan  v.  Bank 54 

P>renner   v.   Hirsche 247 

Brett  v.  Carter 362 

Brewer  v.  Brown    252 

v.   Proprietors    137,  138 


Page. 

Brice  v.  Bauer 443 

Brick  v.  R.  R.  Co 15 

Bridge  v.  Ward 339 

Bridges  v.  Ry.  Co 221 

Brigg  v.   Hilton 37 1 

Briggs  v.  Bergen    485 

v.   Cape   Cod,   etc.,   Co....    129 

v.  R.  R.  Co 69,  296 

v.   U.   S 361 

Brigham   v.   Fayerweather 91 

v.  Palmer 231 

Bright   v.   Boyd 35(i 

Brill   v.   Flagler 443 

Brind  v.  Dale.  .  .  : 282,  287 

Bristol  v.  Austin   460 

v.  Burt   446 

v.  Warner 41 

British,  etc.,  Co.  v.  Somes 296 

British     Eq.     Assurance     Co.     v. 

Great  W.  Ry.  Co 244 

British  Wagon  Co.  v.  Lea Iu5 

Britton  v.  Turner 43,  353 

Broad,  Ex  parte 458 

Broadbent   v.    Ramsbotham 318 

Broadway  Bank  v.  Adams ....  340,  467 

Brock  v.  Bateman 255 

Broderick's  Will   213 

Brodie  v.  St.  Paul 394 

Bronson  v.  Kinzie 88 

Brook  v.   Hook 5 

Brooke    v.    Brooke 291 

Brooks  v.  Hargreaves 41 

Brown  v.  Bradley   9,     10 

v.  Chicago,  etc.,  R.  R.  Co.  187 

v.  Collins   445 

v.    Curtiss 56,  407 

v.   Davies    50 

v.   De  Tastel 272 

v.  Farmers'  Bank   406 

v.  Foster   ..112,  371 

v.  Giles    443 

v.  Ins.  Co... 241,  242,  243,  245 

v.  Kendall    431 

v.  Leigh    486 

v.   Randall    441 

v.   Road   Co 34S 

v.  Sanborn  ... 390,  392 

v.  United  Buttdn  Co.  ....      28 

v.  Williams   . 52 

Browne  v.  West 122 

Browning  v.  Marvin 2t>4 

Bruce  v.   Burr 373 

Bruch  v.  Carter 445 

Brunsrm  v.  Morgan 251 

Brunswick,    etc.,    Co.    v.    United, 

etc.,   Co.    . 128 

Brush   v.   Scribnjer 48 

Bryan   v.   Bprnheimer 38 

v.   Weems 294 

Bryans  v.  State 177 


TABLE  OF  CASES. 


xxv 


Page. 

Bryant  v.  Isburg  375 

v.  Lord 59 

Buchanan  v.  Tilden 104 

Buck  v.  Ins.  Co 238 

Buckhause,  lie  257,  258 

Buckingham  v.  Hanna *: . . .  211 

Buckland  v.  Adams  Express  Co..  61 

v.  Butterfield  330 

Budd  v.  Hiler  357 

v.  Xew  York 81 

Buel  v.  Boughton 348 

Buffalo,  etc.  v.  Dudley 133 

Buhl  v.  Ball 502 

Bull  v.  Kentucky  Bank 336 

Bull  v.  Loveland 235 

Bullard  v.  Pearsall ,....  236 

Bullen  v.  Sharp 248 

Bullock  v.  Babcock 204 

v.  Campbell 409 

Bunce  v.  Wolcott 306 

Burgess  v.  Vroeland 59,  60 

Burnett  v.  Snyder 248,  249 

Burns  v.  Erben 442 

v.  People  177,  178 

Burr  v.  Wilson  .• 455 

Burritt  v.  Belfy 115 

v.  New  Haven 149 

Burroughs  v.  Moss 50 

Burrows  v.  Ward 357 

Burt  v.  Dewey . 350 

Burtis  v.  Thompson 116,  117 

Burton  v.  Larkin 104 

Bush  v.  Lathrop 464 

Busier  v.  Farrington 455 

Bussey  v.  Barnett 283,  287 

v.  Trans.  Co 61 

Buster  v.  Xewkirk 294 

Butcher's  Sons  v.  Krauth 22 

Butler  v.  Murray 71 

v.  U.  S 424 

Butterfield  v.  Byron 119 

Button  v.  Hoffman 124 

Buttrick  v.  Lowell 148 

Butts  v.  Voorhees 435 

Byrne  v.  Schiller  351 

v.  Van  Tienhoven 95 

C. 

Cabot  Bank  v.  Warner 60 

Cade  v.   McFarland 433 

Cadoll  v.  Palmer 341 

Cachvell  v.  Blake 106,  111 

Cahen  v.  Platt 115 

Cain  v.  McOuire 392 

Cal'or  v.  Bull 87 

Cal-'well  v.  Leiber 272 

Callishor  v.   Bischoffsheim 100 

Callow  v.  Lawrence 55 

Calvert  v.   Gordon..                         .  427 


Page. 

Camblet  v.  Tupery.  * 258 

Cambridge  Savings  Bk.  v.  Hyde.  .   419 

Camden  v.  McKoy 46 

Camp   v.   deary 337 

Campbell  v.  Bowen    268 

v.   Brown    . ' 443 

v.    Ernest 497 

v.   Mesier    317 

v.  Race   443 

v.  Sherman   449,  450 

Canal  Bank  v.  Bank  of  Albany.  .   349 

Candor's  Appeal 203 

Canedy  v.  Marcy 347 

Canfield  v.  R.  R.  Co 68 

Cann  v.  Cann 468 

Canning  v.  Williamstown 186 

Canny  v.  Andrews 317 

Capen  v.   Peckham 330 

Carbrey  v.  Willis 312 

Cardival  v.  Smith 441 

Carew  v.   Rutherford 359 

Cargo  ex  Galam 71 

Carleton  v.  Franconia  Co 437 

Carley  v.  Jenkins 261 

Carme  v.  Rauh • 384 

Carnwright  v.  Gray 43 

Carpenter  v.  Carpenter 195,  207 

v.  Centennial,  etc.,  Assn.  238 

v.  Ins.  Co 446 

v.    State 157 

Carr  v.  Hood    159 

v.  Ins.  Co 243 

v.  Northern  Liberties 149 

Carrier  v.  Cameron 261 

Carroll  v.  R.  R.   Co 68 

v.  Weld    46 

Carroll  Co.  v.  Young 34 

Carson  v.  Insurance  Co.. 241,  242,  243 

Carsten  v.  R.  R.  Co 75 

Carter  v.  Phillips   369 

v.  Whalley   263 

Carver  v.  Steele 418 

Carwile  v.   State 158 

Case  v.   Wolcott.  .  , 183 

Casey  v.  Brabason 405 

Casher  v.  Peterson 296 

Cashman  v.  Reynoms 486 

Casky  v.  Casky 271 

Cassidy  v.  McKenzie 19 

Castle  v.  Bullard    269 

Caswell  v.  Parker 204 

Catlin  v.  Eacle  Bank 142 

Cave  v.  Mackenzie 404 

Cayuga.  etc.  v.  Warden 56 

Central  Bank  v.  Hammett 55 

Central,  etc.,  Co.  v.  Cushman. ...    120 

v.  Smith 130 

Central  Trans.  Co.  v.  Pullman...    135 
Ciiali'ee  Countv  v.  Potter Iu2 


XXVI 


TABLE  OF  CASES. 


Page. 

Chamberlain  v.  Hopps 41 

v.  Williamson   326 

Chamberlayne  v.  Brockett 344 

Chambers   v.   Davidson 380 

Champlin   v.   Pepdleton 309,  310 

Chandler   v.   Fulton 386,  387 

v.   Simmons 207 

Chaney  v.  Arnold lyl 

Chapin  v.  Freeland 294 

v.  Lapham 406 

Chaplin  v.  Rogers 370,  393 

Chapsky  v.  Wood 202 

Charles   River   Bridge   v.   Warren 

Bridge  . 127 

Chase  v.  Kittredge 324 

v.  Westmore   296 

Chastain  v.  Bowman 2 

Chauncey  v.  Dyke  Bros 34 

Cheever  v.  Wilson 195 

Cheney  v.  R.  R.  Co 75 

Chesley  v.  Pierce 146 

Chester  v.  Dickerson 269 

Chesterfield  v.  Janssen 213 

Chestnut  Hill,  etc.  v.  Rutter 130 

Chicago  Co.  v.  Nichols 458 

Chicago,  etc.,  R.  R.  Co.  v.  Dane...      95 
Chicago,     etc.,     R.     R.     Co.     v. 

Harwood 187 

Chicago,     etc.,     R*     R,     Co.     v. 

Price : Ill 

Chicago,      etc.,      R.      R.      Co.     v. 

Sweet 187 

Chicago    Gas    Light    Co.    v.    Peo- 
ple's, etc.,  Co 119 

Child  v.  Affleck   440 

v.  Boston   ..'.* 149 

Children's    Aid    Soc.    v.    Love- 
ridge  322 

Childress  v.  Yourie 180 

Childs   v.  Jordan .   461 

v.  O'Donnell 362 

Chirac  v.  Reinicker 235 

Chism  v.  Schipper Ill 

Chrisman  v.  Wheaton 319 

Christian  v.  Bunker 382 

Christian  Union  v.  Yount 124 

Christie  v.  Borelly 107 

Christophers  v.  W'hite 270 

Christ's  Hospital  v.  Grainger,  341,  344 

Christy  v.  Sherman 268 

Chrysler  v.  Canaday 454 

v.  Renois 40 

Churchyard   v.   Churchyard 196 

Cilley  v.  Colby 415 

Citizens',     etc.,     Bank     v.     Rich- 
mond        48 

City  Bank  v.  Bruce 33,  128 

v.  Hopson 56 

v.  Phelps 403 

v.  Young 413 


Page. 

City  of  Lowell  v.  Hadley 82 

City  of  N.  Y.  v.  Clark 419 

Clatiin  v.  Claflin :    339 

Clapp  v.  Fuller-ton 220 

v..  Lacey 273 

v.  Peterson 143 

Clare  v.  Lamb 350 

Claridge  v.   Evelyn 204 

Clark  v.  Adams 44G 

v.  Clark 194 

v.  Garfield 467 

v.  Holmes 16 

v.  Miller 4.30 

v.  Pinney 184,  359 

v.  Rideout 440 

v.'  Sigourney 45 

v.  Turnbull 100 

Clarke's  Appeal   320 

Clarke  v.  Cus'iing 254 

v.  Dutcher 347 

v.  School  District   150 

v.  Spence 367 

Clay  v.  Edgerton 56 

Cleary  v.  Sohier 35 i 

Cleghorn  v.  N.  Y.,  etc.,  Ry.  Co.  .  .    181 

Cleland  v.  Waters 462 

Clements  v.  Flight 284 

v.  Smith 372 

Clerk  v.  Smith 302 

Cleveland     Rolling    'Mill     Co.     v. 

Rhodes 369,  382 

Clifford  v.  Watts lid 

Clifton  v.   Brown 486 

Clow  v.  Derby  Coal  Co 417 

Clyde  v.  Hubbard . 63 

Coal,  etc.,  Co.  v;  Roach J  6 

Coalhart  v.   Clementson 427 

Cobb  v.   Hatfield '. . ,   214 

Coburn  v.  Webb 420 

Cochran  v.  Cochran 1  "0 

v.   Wheeler 55 

Cochrane  v.  dishing 414 

v.  Moore 294 

Cock  v.  Taylor 61) 

Cockroft  v.'K  Y.,  etc.,  R.  R.  Co.  .    183 

Coffey  v.  Universal  Ins.  Co 23S 

Coffin  v.  McLean 412 

v.  U.  S 21S 

Cogel  v.  Ralph 46.3 

Coggeshall   v.  Ruggles 409 

Cohn  v.  Husson 484 

Coit  v.  Gold,  etc.,  Co 144 

Cole,  In  re 38 

Cole  v.  Berry 382,  383 

v.  Cassidy '.  .  .   453 

v.  Cunningham 4GD 

v.  Hawkins 280 

v.  Manmler 279 

v.  Reynolds 25S 

v.  Sewell  .  .341 


TABLE  OF  CASES. 


xxvii 


Page. 

Colehan  v.  Cooke 41 

Coleman  v.  Applegarth 96 

v.  -Commonwealth 234 

Collector  v.  Day 87 

Collins  v.  Council  Bluffs 187 

v.  Locke 120 

v.  Sullivan 23 

Coloma  v.  Eaves 152 

Col  ten  v.  Willoughby 361 

Coltons  v.  Holliday 25 

Commercial  Bank  v.  Jones 415 

v.  Warren.  ...  5 
Com'rs  Char.  Don.  v.  Clifford ....  344 
Com'rs  McDowell  Co.  v.«  Nichols..  411 

•Commonwealth  v.  Barry 171 

v.  Berry 167 

v:  Bridge  Co.    ...    130 

v.  Burke 163 

v.  Call 173 

v.  Carey 162 

v.  Central    Bridge 

Co 130 

v.  Clark 43.3 

v.  Culver 220 

v.  Dimond 170 

v.  Donahue 434 

v.  Drew 171 

v.  Egan 201 

v.  Essex    Co 133 

v.  Fairbanks    ....   229 

v.  Fleming 368 

v.  Foster  .  .  .171,  175 
v.  Goodenough . . .  175 
v.  Graham  ...  .  .  202 
v.  Grant  .  .  A  .  .  .  157 

v.  Green 204 

v.  Greene 169 

v.  Hardy .223 

v.  Hartnett  .  .   .  .    170 

v.  Holder 156 

v.  Holland 163 

v.  Humphries  .  .  .  163 
v.  Insurance  Co..  129 
v.  Kennard  ....  449 

v,  Kenny 193 

v.  Kingsbury  .  ...   160 

v.  Knapp 220 

v.  Knight 157 

v.  Lancaster  ....    172 

v.  Land 177 

v.  Leonard 174 

v.  Mason 169 

v.  Macloon 155 

v.  McAtee 155 

v.  McShane    177 

v.  Miller    159 

v.  Moreland    ....    174 

v.  Morrill    173 

v.  Newell    .  .165 


Page. 

Commonwealth  v.'CXMalley   167 

v.  Perkins 176 

v.  Perry 159 

v.  Pickering    ....    157 

v.  Pollard    157 

v.  Pritchard    ....    156 

v.  Ray    174 

v.  Robinson    220 

v.  Roby    177,  178 

v.  Sholes    177 

v.  Smith 128 

v.  Snelling    158 

v.  Stephenson     ...  165 

v.  Stone    176 

v.  Strupney 165 

v.  Titus    167 

v.  Uprichard    ....    156 

v.  Upton 159 

v.  Webster    161 

v.  White    169 

v.  Williams    165 

Comstock  v.  Affoelter 369 

v.  Scales    361 

Concord  Bank  v.  Bellis 197 

Condict  v.  R.  R.  Co 451 

Condon  v.  Ry.  Co 66,  108 

Conkey  v.   Bond 22 

Connor   v.   Trawick's   Administra- 
tor     460 

Conrad  v.  Fisher 380 

Conrader  v.   Cohen 27 

Converse,  In  re 79 

Converse  v.  Converse 32 1 

Conway  v.  Alexander 381 

v.  Starkweather    310 

Cook,  Ex  parte 258 

Cook  v.   Brown 315 

Coo.k  v.  Daggett 356 

v.  McClure     302 

v.  Slate  Co 262 

v.  Southwick    46 

v.  Stearns    319 

v.  Van  Home   363 

Cooke  v.  Millard 390 

Cooley  v.  Dewey 204 

v.  Wardens 90 

Coolidge  v.  Payson 43 

Coombs  v.  Scott 8 

Coope  v.  Bowles 265 

Cooper,  Ex  parte 3SG 

Cooper  v.  Cooper    357 

v.  Joel 413 

v.  Newman 384 

Cooper's  Case   433,  434 

Coppin  v.  Greenless  Co 128 

Cork  Distilleries  Co.  v.  Ry.  Co..      67 

Cork,  etc..  Ry.  Co.,  In  re.'. 352 

Corn    Exchange    Bank    v.   Nassau 
Bank 348 


XXV111 


TABLE  OF  CASES. 


Page. 

Corwine  v.  Corwine 328 

Cory  v.  Barnes 380 

Coagrove  v.  McKasy 410 

Cotterall  v.  Hindle 22 

Couling  v.  Coxe 292 

Counselman  v.  Hitchcock 32 

County  of  Mahaska  v.  Ingalls .  .  .  227 

Courtwright  v.  Leonard 365 

Coventry  v.  R.  R,  Co 3 

Cowan  v.  Duncan 411 

Cowen  v.  People 173 

Cowell  v.  Springs  Co 342 

Cowley  v.  Smyth 453 

Cox  v.  Bank 57 

v.  Freedley    310 

v.  Hickman 248,  24!) 

Crabb  v.  Crabb 195 

Crabtree  v.  Alessersmith 117 

Craig  v.   Parkis 404 

Craig  v.  Van  Bebber 207 

Craker  v.  Chic.,  etc.,  R.  R.  Co 186 

Cram  v.  Bangor  House 260 

Crandall   v.   Lincoln 128,  143 

Crane  v.  Brigham 330 

Cranson  v.  Goss 47 

Crawford  v.  Burke 29,  37 

Crawshay  v.   Collins 272 

Craythorne  v.  Swinburne 410 

Crease  v.   Babcock 89 

Cressey  v.   Sabre 301 

Crispin  v.  Babbitt 14 

Crist  v.  Kleber 381 

Crocker  v.  Gullifer 362 

Crofut  v.  Danbury 147 

Crogate's  Case 28o 

Croman  v.  Stull iU2 

Crommelin  v.  R.  R.  Co 69 

Grossman  v.   Grossman 231 

Crouch  v.  Gutmann Ill 

Crouise  v.  Crouise 193 

Crowder  v.  Langdon 212 

Crowninshield  v.  Crowninshield .  .  218 

Crump  v.  McMurty 409 

Cuming  v.  Brown 387 

Gumming  v.   Gumming 197 

Cumming's  Appeal   255 

Cundy  v.  Lindsey 397 

Cunliff  v.  Harrison 366 

Cunningham  v.  People    175 

v.  Reardon     355 

Curnen  v.  Mayor 346 

Currier  v.  Gale 227 

v.  Ins.  Co 240 

v.  Lockwood 40 

Curtin   v.   Somerset 436 

Curtis  v.  Brewer 182 

v.  Harlow 140 

v.  MacDoupal 200 

v.  Williamson  .  17 


rage. 

Curtiss  v.  Ayrault 313- 

Cusack  v.  Robinson 39-i 

Gushing  v.  Breed • b65 

Cutliff  v.  McAnally 1U 

Cutter  v.  Butler 32.1 

Cutting  Co.  v.  Packers'  Exchg .  .  .  4UO 

D. 

Daby  v.   Ericsson 251 

Dailey   v.   King 100- 

Dair  v.  U.  S -. 425 

Dalrymple  v.  Dalrymple 191. 

DanV  "Brown 219,  325' 

Dana  v.  Sawyer 57 

Dane  v.  Ins.  Co 509 

Daniel  v.  Toney 260 

v.  Townsend 256 

Daniell  v.  Sinclair 347 

Daniels,  Ex  parte 265- 

Daniels  y.  Hudson,  etc.,  Ins.  Co .  .  237 

v.  Newton  ....! 117 

Danser  v.  Warwick 461 

D'Aquila  v.  Lambert 385 

Darling  v.  R.  R.  Co 437 

v.  Westmoreland 222 

Darlington  v.  Mayor 147 

Dartmouth      College      v.      Wood- 
ward   74,   131,  194 

Davidson  v.  Graham 65 

v.  Xew  Orleans 78- 

Davies  v.  Humphreys 227 

v.  Mann 452 

v.  Penton 280 

Davis  v.  Cong.  Society    437 

v.'Garrett  .....' 64 

v.  Hamlin 23 

v.  Heard 455 

v.  Lane 19 

v.  McFarlane  .  . 392 

v.  Miller 54 

v.  Munson 97 

v.  Old  Colony  Co 135 

v.  Peck  .  .    ." 68 

v.  Russell 370,  39S> 

v.  Sigourney 2JO- 

v.  Van  Buren 42  /' 

v.  Wells,  Fargo  &  Co.  .402,  404 

v.  Windsor   Savings   Bank,  l.l 

Davison  v.  Powell 482 

Dawkins  v.  Lord  Penrhyn. 335 

Daws  v.  Nat.  Exchange 'Bank 367 

Dawson  v.  R.'  R.  Co 64 

Day  v.  Boswell 247 

v.  Ins.  Co 2-45 

v.  Pool 370 

Dayville  Woolen  Co.,  In  re 29 

Dean,  In  re 462 

Dearborn  v.  Turner 383 

Dearie  v.  Hall .  .                                 .  465 


TABLE  OF  CASES. 


xxix 


Page. 

Deaton,  In  re 157 

Debuw   v.   Coif  ax 333 

De  Comas  v.  Frost 21 

Decker  v.  Fredericks 12 

De  Cremer  v.  Anderson 402 

De  Cuadra  v.  Swann 71 

Deerfield  v.  Arms 302 

Deering     v.     Earl     of     Winchel- 

sea 209,  410 

De  Freest  v.  Warner 102 

Deitz  v.  Ins.  Co 242 

Delafield  v.  Hand 230 

De  Lancey  v.  Ga  Nun 305 

Delaware,  The  70 

Delaware  &  H.  Canal  Co.  v.  Penn. 

Coal  Co 108 

Delaware  Bank  v.  Jarvis 349 

Demonbreun  v.  Walker 231 

Dempsey  v.  Chambers 8 

Dench  v.  Walker 446 

Denning  v.  Roome 316 

Dennis  •  v.  Clark 203 

Dennison  v.  Ins.  Co 238 

Dennistoun  v.  Stewart 58 

Denny  v.  Metcalf 258 

v.  R.  R.  Co 450 

Depew  v.  Leal 503 

De  Pinna  v.  Polhill 282 

Dering  v.   Winchelsea 209 

Derrickson  v.  Smith 145 

Derry  v.  Peek 453 

Detroit  v.  Blakeby 149 

Deutsch  v.  Bond 405 

Devens  v.  Insurance  Co 242 

Devine  v.  Edwards 348 

Dew  v.  Parsons 359 

Dexter  v.  Blanchard 406 

v.  Borth 235 

v.  Hall 91 

v.  R.  R.  Co 74 

Dias  v.  Chickering 381 

Dickinson,  Appellant   467 

Dickinson  v.  Dodds 96 

Dickson   v.   MacPherson 421 

Dietz  v.   Langfitt 429 

Diggles,  In  re 460 

Dingloy  v.  Boston • 84 

District  of  Columbia  v.  Armes.  .  .  222 

v.  Cornell.  .  51 

Ditson  v.  Ditson 194 

Diversey  v.   Smith 145 

Dixon  v.  Ramsay 320 

Dob  v.  Holsey 261 

Dobbins  v.  Com'rs  Erie  Co 87 

Dob«rm  v.  Pearce 482 

Do(i-l  v.  Acklom 308 

Doclsje  v.  Hopkins 7 

v.  Stiles 98 

Doe  v.  Bell 310 


Pa  pe. 

Doe  v.  Hiscocks 234 

v.  Leek 311 

v.  Ross 230 

Doe  d.  Gill  v.  Pearson 336 

Doherty  v.  Hill 233 

Dole  v.  Erskine 433 

Don  Moran  v.  People 163 

Dooley  v.  Co 53 

Dorr   v.   Fisher 350 

Dorrington  v.  Carter 28$ 

Dosdall  v.  County 148 

Doss  v.  Mo.,  etc.,  R.  R.  Co .  .  .    181 

Doubleday  v.  Kress 54 

Doughty  v.   Savage 424 

Douglas  v.   Gansman 200 

v.  Reynolds 57 

Dounce  v.  Dow 376 

Dow,  In  re 36 

Dowling  v.  McKenney 351 

Downer  v.  Bank 464 

Downing  v.  Mt.  Washington  Road 

Cc 127,  148 

Dowzlet  v.  Rawlins 262 

Doyle  v.  Trinity  Church 357 

Drake  v.  Baker 183 

v.  Price 459 

v.  Seaman 405 

Drayton  v.  Wells 224 

Drew  v.  Beard 272 

v.  Ferson 272 

v.  Nunn 19,  263 

v.  Wakefield 328 

Drewry  v.  Young 395 

Drinkwater  v.  Dowding 20 

Driscoll  v.  Winters 4i;0 

Dubois's  Appeal   260 

Dubois  v.  Hermance 482 

Dudley  v.  Kentucky  High  School.    137 

Dugan  v.  Anderson 117 

Dugdale,  In  re  336 

Duke  of  Rutland  v.  Bagshawe .  .  .   292 

Dumaresly  v.  Fisly 191 

Dunbar  v.  Dunbar 28 

Duncan  v.  Baker 113 

v.' Charles 115 

v.  Gilbert 42 

v.  Maryland  Sav.  Inst ...     43 

Dunham's  Appeal 22') 

Dunlap  v.  Foster 411 

Dunlop  v.  Gregory 182 

v.  Higgins 93 

Dunn  v.  Parsons 417 

Dtmphy  v.  Traveller  Assn 138 

Dupee  v.   Blake 415 

Dupre,  In  re 82 

Dupuy  v.  Leaveriworth 265 

Durant  v.  Rojrers 269 

Durfee  v.  R.  R.  Co 133 

Durham  v.  Manrow.  .  .   407 


XXX 


TABLE  OF  CASES. 


Page. 

Dnrkin  V.  Cobleigh 232 

Dusenberry  v.  Hoyt 37 

Dustan  v.  McAndrew 183 

Dutch  v.  Warren 352 

Dutton  v.  Morrison 253 

v.  Willner 24 

Dwight  v.  Scovil 56,     59 

Dyer  v.  Clark 253 

v.  Gibson 407 

v.  Homer 43 

.  Pendleton . .  .335 


E. 

Eager  v.   Commonwealth 

v.  Crawford 

Eagle  Bank  v.  Hathaway 

Earl  of  Kildare  v.  Eustace 

East  Birmingham  Co.  v.  Dennis .  . 
East  Hartford  v.  Hartford  Bridge 

Co 140 

East  Tenn.  R.  R.  Co.  v.  Hale 183 

Eastern,  etc.,  Ry.  Co.  v.  Hawkes.    136 

Eastman  v.  Meredith 148,  150 

v.  Moulton 226 

Easton  v.  Courtwright 265 

Eastwood  v.  Kenyon 100 

Eaton  v.  B.,  etc.,  R.  R.  Co 85 

v.  Lvman 189 

v.  'Wells 487 

v.  Winnie 437,  455 

Eckles  v.  State 166 

Eddy  v.  Davis 115 

Edgerton  v.  Wolf 206 

Edie  v.  E.  I.  Co 45 

Edmonds'  Case' 101 

Edmund's  Assn.  v.  Harper 412 

Edwards  v.  Tracy 248 

Eilenhecker  v.  Plymouth  Co 79 

ELbinsrer  v.  Armstrong 184 

Eldred  v.  Hawes 50 

Eldridge  v.  Rowe 113 

Eliason  v.  Henshaw 94 

Eliot  v.  St.  Louis,  etc.,  Ry.  Co.  ...     62 

Elkins  v.  R.  R.  Co .* 137 

Elkinton  v.  Booth .' 263 

Ellicottville.  etc.,  v.  Buffalo,  etc., 

R.  R.  Co.   429 

Elliot  v.  Brown 433 

Elliott  v.  Caldwell 109 

v.  Holbrook 266 

v.  Pybus 378 

Ellis  v.   Andrews 455 

v.  Bray 394 

v.  Ellis 268 

Elmore  v.  R.  R.  Co 66 

Elton.   Ex  parte 255 

Elwell  v.  Chamberlin 7 

Ely  v.  Ely 231 

Emerson  v.  Galloupe 23 


Emerson  v.  Gaa  Co 222 

v.  Senter 265 

v.   Slater 407 

Emery  v.  Baltz   423,  427 

Emmons  v.  Murray z06 

Emslie,  In  re 33 

Engster  v.  West 119 

Enoch  v.  Mining  &  P.  Co 189 

Erwin  v.  Harris 370 

v.  Wilson 213 

Espy  v.  Bank  of  Cincinnati '.  49 

Essell  v.  Haywood 27 1 

Estabrook  v.  Boyle 42 

Estes  v.  Whipple 249 

Esty  v.  Wilmot 447 

Eureka'  Co.  v.  Edwards 207 

Evans  v.  Evans 195 

.v.  Ins.  Co z3S 

Everett  v.  R.  R.  Co 75 

Everman  v.  Robb 361 

Ewen  v.  R.  R.  Co 187 

Exchange  Bank  v.  Nat.  Bank..-..  458 

v.  Rice 43 

Exhaust  Ventilator   Co.   v.   Chic., 

etc.,  Ry.  Co 112 

Express  Co.  v.  Kountze  Bros ....  64 

F. 

Fabens  v.  Bank 45S 

Faigley  v.   Stoneberger 208 

Fairchild  v.  City  of  St.  Paul 64 

v.  North    Eastern,    etc., 

Assn.  ... 104 

Fairthorne  v.  Weston 271,  272 

Falk.  Ex  parte 388 

Fall  River  Bank  v.  Willard -    56 

Fanning  v.  Wilcox 306 

Farlow  v.  Ellis 364 

Farmer  v.  Robinson IS 

Farmers  Bank  v.  Braden 422 

v.  Hathway 423 

Farnam  v.  Davis 356 

v.  Feeley 441 

Farnharn  v.  Pierce 202 

Farnsworth  v.  Halstead 485 

Farr  v.  Newman 327,  466 

Farwell  v.  R.  R.  Co 13 

Faulkner  v.  Hart 66 

Fawcett  v.  Osborn 384 

Faxon  v.  Hollis 220 

Fay  v.  O'Neil 44 1 

Fee  v.  Kimball 387 

Felch  v.  Hooper 461 

Feldstein,   In  re 32 

Fellows  v.  Wyman 204 

Felton  v.  Bissell 409 

Ferguson  v.  Northern  Bank 365 

Fern  v.  Ctishinsr 253 

Ferrero  v.  Bihrlmeyer 271 


TABLE  OF  CASES. 


Page. 

Ferris  v.  People 177 

Fertilizing  Co.  v.  Hyde  Park 127 

Field  v.  Farrington 21 

v.  Schieftelin 327 

v.  West  Orange   150 

Fielding  v.  Waterhouse 416,  417 

Filburn  v.  People's,  etc.,  Co 438 

Filby  v.  Miller 463 

Fillieul  v.  Armstrong 109 

Finch  v.  Pindon 480 

Fink  v.  Cox 42 

Finn  v.  Clark 369 

Finney  v.  Apgar 390 

v.  Ins.  Co 6 

First  Nat.  Bank  v.  Bissell 5.21 

'    v.  Staake 30 

First  Nat.  Bank  of  Toledo  v.  Shaw  399 

First  Nat.,  etc.,  v.  Co 144 

First  Universalist  Soc.  V.  Boland.   342 

Fisher  v.  Boston 148 

v.  Essex  Bank   140 

v.  Murray 268 

v.  Pender 260 

v.  Smith 310 

Fitcjj  v.  Johnson 314 

v.  Newberry 69,  297 

Flake  v.  Day 1 

Flash  v.  Conn 145 

Fletcher  v.  Ashburner 209 

v.  Rylands 444,  445 

Flinn  v.  Bagley 143 

Flower  v.  Pertii.  R.  R.  Co 14 

Fogg  v.  Blair 143 

Foot  v.  Card 201 

Forbes  v.  Scannell 265 

Ford  v.  Ford 209,  320 

v.  R.  R.   Co 15,     16 

v.  Tiley 116 

Fnrgotston   v.    Cragin 482 

Foshay  v.  Riche 282 

Foss  v.   Foss 193 

v.  Harbottle 138 

Foster  v.  Bates 320 

v.  Dawber 52 

v.  Hall 235 

v.  Rockwell 8 

v.  Ropes 365 

v.  Smith 102 

Foulkes  v.  R:  R.  Co 437 

Fox  v.  Dawson 357 

v.  Hanburg 264 

v.  Ohio  . 156 

Foy  v.   Commonwealth 173 

Frndley  v.  Ilvland 17 

Frank  v.  Edwards 421 

Frnnknm  v.  Earl  of  Falmouth.  .  .    285 

Franklin   v.   Lee 191 

v.  Miller 113 

Franklin  B'k  v.  Cooper 424 


I'asre. 

Franklin  B'k  v.  Stevens 422 

Franklin  Infc.  Co.  v.  Sefton 241 

Franklin,  etc.,  Ins.  Co.  v.  Coates..  240 

Freakley  v.  Fox 52 

Freaner  v.  Yingling 416,  418 

Freedman'a  Co.  v.  Earle 460 

Freeholders,  etc.  v.  Strader .  .....    148 

Freeman  v.  Glens  Falls  Co......      17 

v.  Ins.  Co 239 

v.  Nichols 101 

Freeman's  Bank  v.  Savery 261 

French  v.  Burns 332 

v.  Jarvis 55 

v.  Marstin 317 

v.  Pearce 305 

v.  Styring 243 

Friberg  v.  Donovan 411 

Friedman,  Matter  of   33 

Frisbee  v.  Ins.  Co 238 

Frisli  v.  Miller tz6 

Fritz  v.  R.  R.  Co 437 

Frost  v.  Woodruff 382 

Froude   v.   Bishop 415 

Fry  v.  Plait 394 

Fuchs  v.  Koerner 185 

Fulkerson  v.  Holmes 225 

Fuller  v.  Paige 295 

Fuller  Co.  v.  Doyle 421 

Fulton  v.  Robinson 394 

v.  Whitney 463 

Furbjsh  v.  Goodnow 405 

Furnas  v.  Friday 453 

Fursdon  v.  Weeks 28(5 

Furse  &  Co.,  In  re 33 

Furst  &  Co.  v.  Black 404 

G. 

Gaile  v.  Betts 289 

Gaillard  v.  Gaillard 196 

Gaines  v.  Relf 230 

Gale  v.  N.  Y.  C.,  etc.,  R.  R.  Co.  .    183 

Galliard  v.  Laxton 449 

Galvin  v.  State 162 

Gammon  v.  Howe 182 

Gannon  v.  Hargadon 319 

v.  R.  R.   Co 14 

Gardner  v.  Alexander 283 

v.  Ogden 23 

v.  Rowe 461 

Garmett  v.   Blodgett 408 

Garr  v.  Selden 440 

Garves  v.  L.  S.  R.  R.  Co 65 

Garvin  v.  Williams 322 

Gaslnveiler  v.  R.  R.  Co 0,5 

Gates  v.  Beecher 59 

v.  Fisk 266 

v.  Graham 260 

Gaussen  v.  Morton 19 

Gautret  v.  Egerton 437 


xxxa 


TABLE  OF  CASES. 


Page. 

Gaylord,  In  re 36 

Gay  lord  Mfg.  Co.  v.  Allen 370 

Geismer  v.  L.  I.,  etc.,  R.  R.  Co.  .  .  64 

Genl.  Steam  Nav.  Co.  v.  Rolt 421 

George  v.  Gobey 13 

v.  Jennings 438 

v.  Tate 260 

Georgia  -v.  Atkins 87 

Georgia  Handle  Co.,  In  re 33 

German-American  Ins.  Co.  v. 

Etherton 246 

Gerrish  v.  New,  etc.,  Inst 459 

Gerson,  In  re 29 

Gibbons  v.  Pepper 283,  288 

Gibbs  v.  Blanchard 405 

v.  Guild 470 

Gibson  v.  Cramage  112 

v.  Erie  Ry.  Co 16 

Giddings  v.  Giddings 42 

Gifford  v.  Corrigan 104 

Gilbert  v.  Parker 282 

Gilchrist  v.  Brande 270 

Gile  v.  Stevens 179 

Giles  v.  State 159 

Giles  Lithographic,  etc.,  Co.  v. 

Chase 372 

Gilhooley  v.  Washington 335 

Gillet  v.  Maynard 356 

Gillham  v.  R.  R.  Co 319 

Gillilan  v.  Ins.  Co 268 

Oilman  v.  Noyes 451 

Gilmore  v.  Driscoll 318 

Gilshannon  v.  R.  R.  Co 72 

Gladding  v.  Ins.  Co 241,  242,  243 

Glade  v.  Ins.  Co 237 

Glasscock  \  Smith 265 

Gleason  v.  Hamilton  .  . 232 

v.  R.  R.  Co 73 

Globe  Bank  v.  Small 403 

Glyn  Mills  v.  East  &  West  Ind. 

Dock  Co : 386 

Goddard  v.  Binney 367,  390 

v.  Gardner 235 

v.  R.  R.  Co 73 

Godfrey  v.  Godfrey 502 

v.  People 160 

Golding  Davis,  Ex  parte, 388 

Gelding's  Petition  204 

Golson  v.  Brand 411 

Gompertz  v.  Bartlett 350 

Gooch  v.  Holmes 3D  1 

Goodman  v.  Simonds 48 

Goodchilil  v.  Pledge 283,  286 

Goodrich  v.  Weston 230 

Goodwin  v.  Clark 344 

Goold  v.  Chapin 66 

Goram  v.  Sweeting 282 

Gordon  v.  Cannon 265 

v.  Ellis  .  .  291 


Page. 

Gordon  v.  Maynard   55 

Gorhain  v.  Inuis 250 

Gossett  v.  Kent 251 

Gough  v.  Goldsmith 439 

Gould  v.  Cayuga  Nat.  Bank 214 

Gould  v.  Eastern  Ry.  Co 310 

v.  Howell -.   383 

v.  Lasbury 287 

Graf  ton  v.  Cummings 394,  395 

Graham  v.  R.  R.  Co 142 

Grandin  v.  Grandin 100 

Grand  Rapids  Co.  v.  Jarvis 85 

Granite  City  Bank,  In  re 34 

Grant  v.  Nat.  Bank 33 

v.  Norway 3 

Gratitudine,  The   » 71,  447 

Grattan  v.  Ins.  Co 240 

Gravers's  Appeal 20 

Graves   v.    Dolphin : 339 

v.  Hall 265 

v.  Lebanon  Nat.  Bk 422 

v.  Steamboat  Co 6& 

v.  Weld 333 

Gray  v.  Agnew 384 

v.  Green 4  252 

v.  Hill 351 

v.  Moore 119 

Great  Western,  etc.,  Co.  v.  Tucker.  185 

Green,  In  re 2  i 

Green  v.  Chapman 258 

v.  Gilbert 354 

v.  Goddard 433 

v.  Humphrey 385 

v.  Omnibus  Co 130 

v.  Spicer 339 

Greene  v.  Dennis 327 

v.  Graham 252 

v.  Greene 466- 

v.  Merriam 393 

Greenfield  Bank  v.  Crafts 5 

v.  Leavitt 446 

v.  Stowell 4& 

Greenly  v.  Wilcocks 311 

Greenwood  v.  Freight  Co 132 

Gregory  v.  Lee  ...   .  . 2(>5 

v.  Paul 198- 

v.  Pierce 197 

v.  Schoewell 373 

Gridley  v.  Andrews 328 

Griffin"  v.  Goff 57 

Griffith  v.  Buck 253 

v.  Fowler 294 

Griffiths  v.  Earl  of  Dudley 16 

Gripe-;  v.  Austin 69,  351 

Grinnell  v.  Wells 203 

Grissler.  In  re 33 

Griswold  v.  R.  R.  Co 72 

v.  Washington 271 

Grocers'  Bank  v.  Penfield.  .  42; 


TABLE  OF  CASES. 


XXXlll 


Grove  v.  Vaii  Duyne  449 

Grover's  Appeal    20 

Grube  v.  Wells 3uo 

Grymes  v.  Buweren 330 

Guardian,  etc.,  Ins.  Co.  v.  Hogan.  241 

Guild  v.  Butler 418 

Guillon  v.  Peterson 270 

Gunning  v.  Royal 100 

Gunnis  v.  Weigley 413 

Gurney  v.  Howe 373 

v.   \Vomersley 349,  350 

Guthrie   v.   Jones...*. 330 

Guy  v.  Mead '.  .  .  227 

Gwinn  v.   Rocker 253 

Gwynn  v.  Duffield 269 

H. 

Haas  v.  Myers 04 

Haase  v.  State 159 

Hackettstown          v.          Schwack- 

hamer 147,  150 

Haddock  v.  Haddock 195 

Hagey  v.  Hill 53 

Hagerty  v.  Powers 203 

Haggerty  v.  McCanna 35G 

Halm  v.   Hutchinson : .  .  339 

Haigh  v.  Brooks 99 

Haight  v.  Ins.  Co 241,  243 

v.  Pearson 23 

Hail  v.  Fuller 438 

Haines  v.  Guthrie 225 

v.  Tucker 115 

Haire  v.  Wilson 429 

Haiton  v.  Jeffreys 279 

Hale.  In  re 37 

Hale  v.  Gerrish 101 

Halifax  v.  Lyle 44 

Halifax   Union   v.   Wheelwright..  48 

Hall  v.  Diamond 38G 

v.  Hall 203,  272,  322 

v.  Lanning 2G7 

v.  Xewcomb 46 

v.  Olney 487 

v.  Smith 409,  410 

v.  Steamboat  Co 73 

v.  Thayer 414 

Hallen  v.  Runder 329 

Hallenbeck  v.  More 270 

Hallefs  Estate.  In  re 31 

Halliday  v.  Holgate . . .« 297 

Hallock  v.  Ins.  Co 94 

Halpin  v.  Ins.  Co 491 

Halsey   v.    Sin«ebaugh 236 

Hal*tP<l   v.    Franris 405 

Halterline  v.   Rice 367 

ITam  v.  Grove 42.'5 

Hamilton.  7?r 256 

Hamilton  v.  Eno 440 

v.  Ins.  Co 221,  241,  242 

v.«Lomax 431 


Tage. 

Hammel  v.  Ins.  Co 244 

Hammett  v.   Limit-man 361 

Hammond  v.  Corbett 202 

v.   Messenger 458 

Handcock  v.  Baker 442 

Handley  v.  Stutz 144 

Hannum  v.  Richardson 45 

Hanley   v.   Donoghue 217 

Hansen  v.  Consumers',  etc.,   Co..    115 

v.  Meyer 313 

Hansen  v.  R.  R.  Co 66 

Hardcastle  v.  R.  R.  Co 436 

Hardon  v.  Newton 129 

Hardwick  v.   Wright 417 

Harford  v.  Morris 19 J 

Hardy  v.  Merrill 229 

v.  R.  R.  Co 15 

Hargreaves,  In  re 341,  342 

Harriman  v.  Brown 226 

Harrington  v.   Findlay 414 

Harrison  v.  Berkley  .....' 451 

v.  Edwards  .  .  .  '. 54 

v.  Jackson 259,  260 

v.  People 166 

v.   Phillips 411 

v.  Tennant 271 

Harris  v.  -Huntbach 406 

v.  Murray  ...» *.....   273 

v.  Webster 201 

Hart  v.  Bridge  Co 236 

v.  Grigsby •. 200 

v.  Kelly 248 

v.  Penn.  R.  R.  Co 65 

Hartford,  etc.  v.  Croswell 137 

Hart-man  v.  Flaherty 454 

Harvard,  etc.  v.  Tufts 328 

Harvey  v.  Briggs 206 

v.  Childs 248 

v.  Merrill 121 

v.  Walters 317 

v.  Young 454 

Harvick  v.  State 154 

Hascall  v.  Whitmore. .  . ; 42 

Hastrop  v.  Hastings 281 

Hatch  v.  Potter  . 42i) 

v.  Standard  Oil  Co 368 

Hathorn  v.  Germania  Ins.  Co.  ...   245 

Hathorne  v.   Stinson 179 

Hattatt's  Trust,  Re 461 

Hatton  v.  Ins.  Co 246 

Hawes  v.  Oakland 137,  138 

Hawkes  v.   Saunders 100 

Hawkins  v.  Graham 112 

v.  Hoffman 74,  440 

Hawthorne  v.  Calef 145 

Haydock  v.  Haydock 322 

Hayes  v.  Berrent '. . .   273 

v.  Little 418 

v.  Pittsburgh,  etc.,  Co....   366 
v.  Ward.  .  .418 


XXXIV 


TABLE  OF  CASES. 


Tage. 

Hayes  v.  Wells,  Fargo  &  Co 63 

Hayman,  Ex  parte, 250 

Hayner  v.  Sherrer 371 

Haynes  v.  Brooks 265 

Hays  v.  R.  R.  Co 70 

Hayselden  v.   Staff 283,  287 

Hayward  v.  Brunswick 314 

v.  Hayward 198 

v.  Leonard 353 

Hazard  v.  Griswold 413 

Head,  In  re, 259 

Head  v.  Briscoe 201 

Head  Money  Cases 83 

Headley  v.  Hackley 100 

Heard  v.  Talbot 129 

Heasman  v.  Pearse 344 

Heath  v.  Waters 272 

v.  White 204 

Heaven  v.   Fender 436 

Ilecht   v.  Weaver 426 

Heckeman  v.  Young 482 

Heekman  v.  Swartz 351) 

Heeg  v.  Licht 445 

Heidman  v.  Wolf  stein 394 

Heilbroner  v.  Douglas 184 

Henderson,  In  re 27 

Henderson  v.  R.  R.  Co 74 

•v.  Sta-te 175 

Hendrickson  v.  Commonwealth...  162 

Henke  v.  McCord 450 

Henkel  v.  Detroit 140 

Hennequin  v.  Clewes 37 

Henry  v.  Davis 332 

Herdic  v.  Green 295 

v.  Young 185 

Heritage  v.  Lawrence 372 

Herr  v.  Sharp 270 

Herryford  v.  Davis 381 

Hesseltine  v.  Stockwell 295 

Hewett  v.  Currier 100 

Hewins  v.  Cargill 420 

Hewitt     Tr.     v.     Berlin     Machine 

Works 30 

He-witt  v.  Anderson 96 

v.  Rankin  . 252 

Hewson  v.  Phillips 450 

Hexamer  v.  Webb 12 

Heyn  v.  O'Hagen 3 

Heyworth  v.   Hutchinson 37 1 

Hickman  v.  Haynes 360 

Hide,  etc..  Bank  v.  West 38:! 

Higinbotham  v.  Holme 338 

Higgins  v.  McXally 357 

v.  Murray 367,  390 

Higcrinson  v.  Dall. 230 

Hig1!  v.  Lack 2fi-> 

Highnm  v.  Riri<?way 22' 

Hi"ht  v.  Ripley ..." 390 

Hill,  Ex  parte, 258 


Hill  v.  Barnes  ................ 

v.  Blake  ................. 

v.  Boston  .............  148, 

v.  Buckminster  ........... 

v.  Reifsnider  ............. 

v.  Wright 
Hillary  v.  Gay  ................. 

Hillock  v.  Traders'  Co  .......... 

Hinchman  v.  Lincoln  .......... 

v.  Stiles  ............ 

Hinckley  v.  Arey  ............. 

v.  Bank  ............. 

v.  Davis  ............ 

Hindmarsh  v.  Charlton  .......... 

Hirschorn  v.  Canney  ............ 

Hirshorn  v.   Stewart  ............ 

Hiscocks  v.  Hiscocks  .......... 

Hitchcock  v.  Galveston  ........ 

v.  Giddings  ......... 

v.  Peterson  ......... 

Hoare  v.  Rennie  .........  .  ...... 

Hobart  v.  Hagget  ............. 

v.  Littlefield  .......... 

Hobbs  v.  Parker  .............. 

v.  Smith  .............. 

Hochster  v.  De  la  Tour  ......... 

Hodges  v.  Adams  ............... 

Hodgson  v.  Dexter  .............. 

Hofheimer  v.  Campbell  .......... 

Tlogan  v.  Jaques  ................ 

Holden  v.  Banes  ................ 

v.  Stratton  ............ 

Holford  v.  Hatch  ............... 

Holland  v.  Alcock  ............ 

v.  Drake  ............. 

v.  Holland  ............. 

v.  Johnson  .  .  ........... 

v.  Rea  ................ 

Hollins  v.  Fowler  ............... 

Hollis  v.  Chapman  .............. 

Hollis'  Hospital,  In  re  ........... 

Hollister  v.  Nowlen  ............. 

Holmes  v.   Godson  .............. 

v.  Jarret.  Moon  &  Co.  ... 

v.  Williams  ............. 

Holt  v.  Bodey  .................. 

v.   Ross  ................... 

Holthausen  v.  Kells  ............. 

Holtz  v.   Dick  .................. 

Holyoke  v.  Adams  .............. 

Home  Ins.  Co.  v.  Heck  .......... 

Home      of      the      Friendless      v. 
Rouse  ....................  88, 

Homer   v.    SHney  ............... 

Hooker  v.  Commonwealth  ...... 

v.  Vn  Tidewater  ......... 

Hooper  v.   Holmes  ............. 

v.  R.  R.  Co  ............. 

Hoorman  v.  Climax  Cvcle  Co..    . 


ase. 
231 
36£ 
14s> 

42 
42!) 
284 
4J;> 
261 
393 
333 

25 

51 
227 
324 
382 
37  1 
234 
151 
35O 
270 
1  1.1 
445 
389- 
454 
467 
110 

45 
;> 

504 
3^2 
102 

32 
31:5 
462 
265 
196 
416 
379 
39!> 
354 
342 

64 
337 
251 
417 
41S 

49 
420 
191 
487 
245 

8f> 

97 

164 

120 

468 

68 

500 


TABLE  OF  CASES. 


xxxv 


Page. 

Hop kius  v.  Ensign 120 

v.  Grimshaw 344 

v.  Lee 183 

v.  Logan 103 

Hopper's  Will   322 

Horn  v.  Ins.  Co 237 

v.  Keteltas 331 

v.  Lewin 285 

Horton's  Appeal   271 

Hoskinson  V.    Eliot 260 

Hospes  v.  Car  Co 14'J 

Hoste  v.  Pratt 345 

Hough  v.  Land  Co 135 

v.  Ry.  Co 15,  1C 

Houahton  v.  Ins.  Co 23S 

Hounsell  v.   Smyth 436,  437 

Houser  v.  R.  R.  Co 14 

Hoverson  v.  Noker 203 

Howard  v.  Ames 50 

v.  Daly 116,  185 

v.  Sheward 3 

Howatt  v.  Davis 380 

Howe  v.  Kerr 250 

v.  Newmarch 11 

v.  Smith 393,  394 

fIo\Te  Machine  Co.  v.  Farrington.  422 

I  Lowell  v.  Huyck 231 

v.  Leavitt 521 

Howt  Us  v.  Landore  Steel  Co 14 

1  lowland  v.  Blake  Co 440 

[Joyt  v.  Ins.  Co 240,  241 

Hubbard  v.  Briggs 453,  454 

v.   Cummings 207 

v.  Hickman 348 

v.  Mosely 40 

Hubert  v.  Moreau 395 

Huchting  v.  Engal 205 

Hud.Iart  v.  Rigby 29' 

Huclelson  v.  Armstrong 427 

Hudnut  v.  Gardner 453 

Hudson,  In  re 99 

Hudson  v.  Granger 20 

v.  McCartney Ill 

Hudson    R.    Tel.    Co.    v.    Water- 

vliet.  etc.,  Co 490 

Huffman   v.   Hughlett 353 

Hughes  v.  Devlin  .  .  . 252 

v.  Graves 305 

Huish  v.  Philips 285 

Humble  v.   Mitchell 391 

Humboldt  v.  Long 152 

Humphrey  v.  Clark 47 

v.  Ins.  Co 244 

Humphreys  v.  Bethily 289 

Humphries  v.  Brogden 318 

v.  Parker 188 

Hunt  v.  Gas  Co 222,  229 

v.  Livermore 108 

v.  Roberts 423 


Page. 

Hunt  v.  Rousmaniere 18,  212 

gr.  Wyman 362 

Hunter  v.   Wright 36'i 

Huntington  v.  Attrill 145 

Hurst  v.   Bell.  . . : 362 

v.  Hurst 336 

Huson  v.  Dale 188 

Hutchins  v.  Bank 327 

v.  Hebbard 19 

v.  State  Bank 293 

Hutchinson  v.  Ford 361 

Hutton  v.  Bulloch 17 

Hyde  v.  Wrench 93 

I. 

Imperial  Ins.  Co.  v.  Gunning. .  . .  244 

Inbusch  v.  Farwell 254 

Indermaur  v.  Dames 437 

Indiana  Co.  v.  Herkimer 125 

Indiana  Ins.  Co.  v.  Capehart 243 

Indianapolis,    etc.,    R.    R.    Co.    v. 

Stables 186 

Ingalls  v.  Bills 73 

Ingersoll  v.  Ingersoll 195 

Ingham  v.   Primrose ".....  51 

Inglebright  y.  Hammond 362 

Inglis  v.  Sailors,  etc 46  J 

Insurance  Co.  v.  Bailey 240 

v.  Davis 20 

v.  Ewing 237 

v.  Hillmon 227 

v.  Ins.  Co 25 

v.  Johnson 239 

v.  Lathrop  .  ..228,  229 

v.  Martin 242 

v.  Messenger  ....  459 

v..  Mosley 228 

v.  Mowry 2o8 

v.  Schwenk 225 

v.  Sturges 241 

International,   etc.,   R.   R.   Co.   v. 

Irvine 189 

Iowa  Lumber  Co.  v.  Foster 123 

Irvine  v.  Watson 17 

Irwin  v.  Williar 121 

Isherwood  v.   Whitmore 370 

Isle  Royal  Mining  Co.  v.  Hertin.  .  356 

Isler  v.'  Baker 263,  271 

Isley  v.  Jewett 102 

J. 

Jackson  v.  Bunnell 496 

v.  Decker 404 

v.  Ins.  Co 243 

v.  Phillips 463 

v.  WSnne 193 

v.  Woodruff 305 

Jacobs.  In  the  Matter  of 80,  81 

Jacobus  v.  Rv.  Co . .  72 


XXXVI 


TABLE  OF  CASES. 


Page. 

James  v.  Adams 377 

v.  Campbell §  .  430 

Janes.  In  re 27 

Jarrett  v.  Martin 412 

Jarvis   v.   Wilson.  . .- 43 

Jauretche  v.  Proctor 336 

Jenkins  v.  French 327 

v.  Jenkins 192 

v.  State 164 

Jenner  v.  Joliffe 230 

Jenness  v.   Wendell 392 

Jennings  v.  Bradeley 270 

v.  Lyons .  .119,  354 

Jerome  Co.  v.  Loeb 497 

Jewell  v.  Jewell 191 

v.  Mahood 447 

v.  Porter 199 

Jewett  v.  New  Haven 148 

Johnson  v.  Allen 115,  370 

»               v.  Belden 329 

v.  Berlizheimer 265 

v.  Boston 10 

v.  Ins.  Co 246 

v.  Johnson 4G8 

v.  Lawson 225 

v.  Lindsay 13 

v.  Phoenix  Ins.  Co 110 

v.  Rockwell 206 

v.  Steam  Gauge  Co 16 

v.  Van  Epps 240 

v.  Walker Ill 

v.  Whitman 458 

Johnston  v.  Button 268 

Jones  v.  Atkinson  .  . 6 

v.  Butler 271 

v.  Council  Bluffs  Bank 43 

v.  Gordon 48 

v.  Judd 354 

v.  Lock 459 

v.  Marsh 103 

v.  New  Haven 149 

v.  Reese 340 

v.  Swayze 315 

v.  U.  S 382 

v.  Yates 269 

Jordan  v.  Dobbins . . . , 425 

v.  Harrison 495 

v.   Jordan 198 

Josselyn  v.  Lacier 40 

Judkins  v.  Ins.  Co 246 

Judson  v.  Western,  etc.,  Corp. ...  64 

Juniata  Bank  v.  Hale 59 

K. 

Kadish  v.  Young 117 

Kane  v.  Bloodgood 470 

Kansas  Pac.  R.  R.  Co.  v.  Peavey.  1C 

Kay  v.  R.  R.  Co 437 

Keats  v.   Hugo .  318 


Page. 

Kee  v.  State..-. 162 

Keeler  v.  Dawson 204 

v.  Eastman 335 

Kellog  v.   Scott 420 

Kellogg  Bridge  Co.  v.  Hamilton.  .  .376 

Kelly  v.  Baker 265 

v.  Bemis 450 

v.  Kelly .  195 

v.  Scott 250 

Kelner  v.   Baxter 6 

Ketchum  v.  McNamara 26 

Kemp  v.  Falk 38S 

Kempner  v.  Cohn 95 

Kendall,   Ex  parte 255,  257 

Kendall  v.  Hamilton 256 

v.  Robertson 47 

Kendrick  v.  0  Neil 266 

Kennard  v.  George 198,  347 

Kenoslia  R.  R.  Co.  v.  Marsh 133 

Kent  v.  Quicksilver  Mining  Co...  139 

v.  Waite 311 

Kertschacke  v.  Ludwig 443 

Ketchum,  In  re 270 

Ketchum  v.   Buffalo 150 

Kick  v.  Merry 98 

Kiene  v.   Ruff 438 

Kiff  v.  R.  R.  Co 63 

Kilbide  v.   Moss 406 

Kill  v.  Hollister 240 

Kimball  v.  Newell 406 

Kimberly  v.  Patchin 365 

Kindt's  Appeal   418 

King  v.  Bates 383 

v.  Bushell 46J 

v.  Ellor 40 

v.  ^lamilton 272 

v.  Jarman , 393 

v.  King 505 

v.  Leighton 264 

v.  Meade 225 

v.  Paterson,  etc.,  Co 141 

v.  Sears 103 

v.   Summitt 406 

v.  Talbot 467 

v.  Wartelle 252 

v.  Welcome 354 

Kingman  v.  Holmquist 365 

Kinney  v.  B.  &  O..  etc.,  Assn '  108 

Kinnick  v.  Chicago,  etc.,  Ry.  Co.  63 

Kinsley  v.  R.  R.  Co 74 

Kip  v."  Bank 466 

Kirby  v.   Foster 170 

Kirk*  v.  Hiatt 266 

Kirkland  v.  Dinsmpre 65 

Kittredge  v.   Folsom 32'1 

Kleinhaus  v.   Generous 261 

Klum  v.  State 15S 

Knapp  v.  Abell 217 

v.  Salsbury 283 


TABLE  OF  CASES. 


XXXYll 


Page. 

Knight  v.  Browne 338 

v.  Clark 9 

v.  R.  R.  Co 69 

Knisley  v.  Pratt.  .  . .  . . 17 

Knowles   v.   Bovill 351 

Knox  v.  Gye 252 

v.  N.   Y.   City 159 

Knox  County  v.  Aspinwall 152 

Kohl   v.    I".   S 84 

Konig  v.   Bayard 44 

Kountz  v.  Kirkpatrick 184 

Kortlander  v.  Elston 408 

Krell   v.   Codman 97 

Krulder  v.  Ellison....'. 68 

Krumm  v.  Beach 214 

Kuns'  Exec.  v.  Young 413 

Kuntz  v.  Young 36 

Kutli  v.   Goldson 453 

; 

L. 

Lacey  v.  Reynolds 292 

Ladd  v.  R.  R.  Co 15 

Ladd's  Will    325 

Ladenburg  v.  Commercial  Bank.  .  501 

Lakenian  v.  Mountstephen «406 

Lamb  v.  Crafts -390 

v.  Crosland 304 

v.  Matthews 54 

Lamberton  v.  Ins.  Co 243 

Lamkin  v.  Douglass 501 

Landis  v.  Rover 102 

Lane  v.  Ironmonger. 201 

Langdon  v.  Astor 32S 

Lamro.  Ex  parte 177 

Lanse  v.  Lewi 504 

Lanmg  v.  R.  R.  Co 14 

Lansd'ale  v.  Cox 410 

Lansing  v.  Ensign.  . 482 

Laramie  County  v.  Albany  County  14(5 

Larison  v.  Larison 200 

Lary  v.  R.  R.  Co 430 

Lasala  v.  Holbrook 318 

Lash  v.   Parlin 394 

Lasher  v.  Williamson 412 

Lassen  v.  Mitchell .' 377 

Lathrop   v.   Harlow 4 

Latter  v.  Braddell 431 

Latrobe   v.    Mayor 467 

Laughlin  v.  Eaton 201 

Lavarenz  v.  R.  R.  Co 221 

Law  v.  Grant 454,  455 

Lawlpy   v.    Hooper 213 

Lawrence,  Re 259,  260,  265 

Lawrence  v.  Barker 236 

v.  Bassett 41 

v.  Fox 104 

v.  Kimball 227 

v.  Miller 116 

v.  R.    R.    Co..  65 


Page. 

Lawrence  v.  State 168 

v.  Shipman 12 

Lazarus  v.  Cowie 56 

Lea  v.  Ship  Alexander 71 

Leach  v.  Thomas 291 

Leake  v.  Robinson 345 

Leakey  v.  Maupin 198 

Leas  v.  Walls 48 

Leather  v.  Simpson 349 

Leavitt  v.  Fletcher 107 

v.  Leavitt 192 

Leazure  v.  Hillegas 135 

Lee  v.  Dick 402 

v.  Griffin 389,  390 

v.  Hills 394 

v.  Ins.  Co 243 

v.  Lanahan   197 

v.  Yandell 413 

Lee,  etc.  v.  Cram :  '383 

Lee  Sing,  In  re 83 

Legg  v.  Evans 289 

Leggett  v.  Hyde 248 

v.  .New  Jersey,  etc.,  Co..  128 

Leishman  v.   White 335 

Leisy  v.     Hardin 90 

Leke's,  Sir  Francis,  Case 282 

Leland,  Re  257 

Lennox  v.  Murphy 402 

Lente  v.   Clarke 394 

Leonard  v.  Ins.  .Co 241 

v.  Leonard 311 

v.  Poole 121 

v.  Vredenburgh 407 

Lerned  v.  Morrill 309 

Le  Roy  v.  Ins.  Co 141 

Leroy  v.  Johnson 261 

Lesassie*  v.  Southwestern 387 

Lesassier  v.  Southwestern 38 1 

Lester  v.  East. 363 

v.  Garland 333 

Leverson  v.  Lane 261 

Levy  v.  Levy 463 

Lewis  v.  Alcock 285 

v.  Browning 94 

v.  Car  Co 62 

v.  Chapman 440 

v.  Darling 328 

v.  Douglass 500 

v.  Greider 378,  379 

v.  Ins.  Co 24 

v.  Long  Isl.  R.  R.  Co 221 

v.  Palmer 409 

v.  Seifert 15 

Lickbarrow  v.  Mason 386 

Lidderdale  v.  Robinson 409 

Lincoln  v.  Boston 14') 

Lindon  v.  Eldred 370 

Linsham  v.  Essrleston 363 

Link  v.  Sheldon 189 


XXXViil 


TABLE  OF  CASES. 


Page. 

Linton  v.  Hurley 269 

Lippincott  v.  Ashfield 406 

Litclifield,  Re   255 

Litchfield  v.  Cudworth 198 

v.  Hutchinson  ...  ....   453 

Little  Miami  R.  R.  Co.  v.  Stevens.     15 

Little  v.  Slackford 40 

Livermore  v.  Batchelder 445 

Liverpool,  etc.  v.  Massachusetts..    123 

Livingston  v.  Arnoux 227 

v.  Livingston 462 

v.  Rawyards  Coal  Co.  295 

Lloyd's  v.  Harper 42C,  427 

Lloyd  v.  Lee 197 

Loan  Ass'n  v.  Topeka 86 

Locke  v.  Priestly,  etc.,  Co 365 

Lock  wood  y.  Levick 24 

Lodge  v.  Fendal 256 

Loeb  v.  Flash 385 

v.  Peters 387 

Logansport  v.  Justice 189 

Logendyke  v.  Logendyke 200 

Long  v.  Blackall 341 

v.  Majestro 272 

Longhurst  v.  Ins.  Co 245 

Loomis  v.  Ins.  Co 240 

Loop   v.   Litchfield 436 

Lord  v.  Bunn 339 

Loring  v.   Brackett 267 

Losee  v.  Buchanan 445 

v.  Clute .' . .  436 

v.  Dunkin 51 

Lothrop  v.  Adams 269 

Louisiana  v.  Wood 352 

Louisiana  Nat.  Bank  v.   Citizens' 

Bank 49 

Louisville  Trust  Co.  v.  Comingor.      38 

Love  v.   Carpenter 272 

Lovcioy  v.  Spafford 262 

Lovett  v.  Gillender 338 

Lowe  v.  Beckwith 404 

v.  Waller 47, 

Lowell  v.  Boston 86 

Lowell,  City  of,  v.  Hadley 82 

Lowman  v.  Yates 416 

Lucas  v.  Campbell 381 

Lundy  v.  R.  R.  Co 75 

Lupton  v.  Lupton 328 

Lyall  v.  Higgins 282 

Lynch  v.  Knight 439 

v.  Smith 400 

Lyon  v.  Lyman 229 

v.  Summers 43 

v.  Travellers'  Co 239 

Lyster  v.  Lyster 196 

Lytle  v.  Lytle 194 

M. 

M.  T.  F.  Tns.  Co.  v.  Gusdorf 243 

MacCutcheon  v.  Ingraham..          .   239 


MacDowell  v.  MacDowell 272 

Mace   v.    Wells 414 

Mackin  v.  People 157 

Mackintosh   v.   Trotter 32& 

Maclean  v.  Dunn 5 

Macleay,  In  re 337 

Macon,*etc.,  R.  R.  Co.  v.  Johnson.    187 

Macrow  v.  R.  R.  Co 74 

Maddison  v.  Alderson 407 

Maegher  v.  Driscoll 181 

Magee  v.  Billingsley 364 

Mahaska,  County  of,  v.  Ingalls.  .  .   227 

Mahurin  v.  Pearson 412. 

Maine  v.  Peck .  .' 278,  27;) 

Maisenbacker  v.  Cc?ncordia  Soc. . .    181 

Malbon  v.  Southard 46 

Malcolmson  v.  O'Dea 226 

Malone  v.  Hathaway 15- 

Manck   v.   Manck 264 

Mandlebaum  v.  McDonnell 337 

Manning  v.  Hogan 15 

Mansfield  v.   Gordon 206 

Marble  v.  Worcester 180 

Maria  y.  State 161 

Marine  Nat..  Bank   v.   Nat.    City 

Bank 49- 

Marlett  v.  Jackman 263 

Marquand  v.  Manufacturing  Co..   271 

Marqueze  v.  Caldwell 395 

Marsden  v.  Moore 106 

Marsh,  In  re  31 

Marsh  v.  Bulteel 280 

v.  Collnett  .  .  * 230 

v.  Falkers 453 

v.  Russell 120 

v.  Whitmore 468 

Marshall  v.  Green 392 

v.  Johnson 272 

v.  Oakcs 201 

v.  Pontiac,  etc.,R.  R.  Co.     74 

v.  Wellwood 445 

Marston  v.  Allen 44 

v.  Baldwin 383 

v.  Fox 32-> 

v.  Norton.' 19H 

Martin,  The  D.  R 72 

Martin  v.  Chauntry II 

v.  Crump 2ol 

v.  Ellerbe's  Adm'r 408 

v.  Searles 202 

v.  Taylor .417 

Martindale  v.'  Smith 364 

Marwick,  In  re 258 

Marx.  In  re 36 

Maryland  v.   Baldwin 191 

Marzion  v.  Pioche. . 19 

Mason  v.  Farnell  . 284,  288 

v.  Powell 435 

Massey's  Appeal   327 

Master  v.  Miller.  .  48- 


TABLE  OF  CASES. 


xxxix 


Page. 

Matthews  v.  Dare 268 

v.  L.  S.  T.  Co 452 

Matthison  v.  Clarke 270 

Mattison   v.   Westcott 390 

Maude,  Ex  parte 259 

Maximilian  v.  New  York 148 

May  v.  West  U.  Tel.  Co 267 

Mayer  v.  Childs 371 

v.  Heidelbach 48 

Mayhew  v.   Crickett 416 

Maynard  v.  Buck 223 

v.  Cleaves 467 

v.  Hill 193 

v.  Maynard 315 

v.  R.  R.  Co 65 

Mayor  v.  Ray 150 

v.  Richardson 285 

Mayor,  etc.  v.  Miln 90 

McAdam  v.  Walbrau 503 

McAllister  v.  R.  R.  Co 63 

McArthur  v.  Sears 62 

McCaleb  v.  Price 98 

McCall  v.  Taylor 41 

McCleary   v.   Ellis 339 

McClure  v.  Briggs 112 

McClurg  v.   Barcalow 192 

v.  Howard 266 

v.    Terry 190 

McCobb  v.  Richardson 212 

M'C'ombie  v.  Davies 440 

McCord  v.  People 173 

McC'ormick  v.   Basal 117 

McCoy  v.  Danley • 319 

v.  Ins.  Co 242 

McCracken  v.  West 454 

McCulloch  v.  Eagle  Ins.  Co 94 

v.  Maryland 87 

McCullough  v.   Commonwealth...  176 

McDaniel  v.  Wood 264 

McDaniels  v.   Flower   Brook  Mfg. 

Co 409 

McDonald  v.  Williams 142,  143 

McDougal  v.   Calef 403 

McDuffee  v.  R.  R.  Co 70 

McElroy  v.  Buck 394 

McElvey  v.  Lewis 505 

McGehe'e  v.  State 161 

McGrath  v.  Clark 48 

v.  Merwin 448 

v.  State 165 

MeGraw,  In  re 136 

McCuire  v.  Bosworth -.  . .  46 

McKenry  v.  Jewett 496 

Mdlroy  v.  Adams 269 

Mchityre  v.  Park 7 

McKee  v.  Ins.  Co.  . 240 

McKeon  v.  Citizens  R.  R.  Co 181 

McKinny  v.  Bradley.  . 383 

McKinnon  v.  Bliss/.        230 


McKnight  v.  Bradley 412 

v.  Walsh 469 

McKown  v.  Hunter 429 

McLaughlin  v.  Cowley.  . . . , 440 

McLean,  Re   256 

McLeod  v.  Jones 434 

McManus  v.  Cassidy. 353 

McMaster  v.  Ins.  Co 232 

McMillan  v.  An;cs 97 

v!  Bull's  Head  Bk 402 

McXair  v.  State 163 

McXeal    v.    Woods 164 

McNeil  v.  Bank 140 

McSherry  v.  Brooks 258 

Mead  v.  Wheeler 182 

v.  Young 49 

Meadow  Dam  Co.  v.  Gray 133 

Mears  v.  Waples 397 

Mechanics'  Bank  v.  Bank 57 

Meech  v.  Allen 255 

Meehan  v.  Valentine 248 

Meek  v.  Briggs 467 

Meeke  v.  Olpherta 467 

Meers  v.  Carr 396 

Meier  v.  Penn.  R.  R.  Co 73 

Meincke  v.  Falk 390 

Meister  v.  Moore 191 

Melville  v.  Brown 295 

Menagh  v.  Wliitwell 253 

Merchants,  etc.,  Bank  v.  Hibbard.   365 

Meredith  v.  Reed 452 

Merlan  v.   Funck 69 

Merrett  v.  Ins.  Co 239 

Merriam  v.  Hassam 470 

Merrill  v.  Smith 200 

v.  Trust  Co 1 

Merrills  v.   Swift 1 315 

Merriman,  In  re 37 

Mertens,  In  re' 31 

Mertens  v.  Winnington 44 

Merwin   v.   Austin 410 

Messenger  v.  R.  R.  Co 61,     70 

Messer   v.   Smyth 200 

v.   Swan '  411 

Metoalf   v.   Barber 33 

Methodist  Church  v.  Clark 462 

v.  Pickett 125 

Meyer  v.  Amidon 453 

Michigan  SS.  Co.  v.  Am.  Bonding 

Co 416 

Middleton  v.  Griffith 44 

Middletown  Bank  V.  Magill 146 

Midland  R.  R.  Co.  v.  Taylor 269 

Mielenz  v.  Quasdorf 43S 

M.  I.  F.  Ins.  Co.  v.  Gusdorf 243 

Milhory  v.  Storer 420 

Miles  v.  Xew  Zealand,  etc.,  Co..    100 

v.  Pennock 255 

Millard  v.   Baldwin..  .   279 


TABLE  OF  CASES. 


Page. 

Miller  v.  Butler .  438 

v.  David 439 

v.  Finley 47 

v.  Harris 252 

v.  Ins.  Co 241 

v.  Miller 204 

v.  Race 47 

v.   Stout 408 

v.  Thompson 384 

Milliken  v.  Warren 380 

Milliman  v.  Meher 361 

Millford  v.  Gibbs 340 

Mills  v.  Bank 59 

v.  Brooklyn 149 

v.  Gleason 150 

v.  Northern  Ry.  Co 142 

v.  Wyman 102 

Milroy  v.  Lord 460 

Miltimore  v.  Chicago,  etc.,  Ry.  Co.  63 

Mima  Queen  v.  Hepburn 224 

Miner  v.  Detroit  Post 440 

Minett  v.  Forrester 20 

Minot  v.  Russ 49 

Mitchell  v.  Ryan 314,  315 

v.  Seipel 311 

v.  Warner 312 

v.  Wellman 382 

Mix  v.  Shattuck 266 

Mobile,  etc.,  Co.  v.  Nicholas 141 

Moffit  v.   Roche 268 

Mogsrridge  v.  Jones 10^ 

Mole  v.  Wallis 289 

Moline  Co.  v.  Rummell 250 

Molson's  Bank  v.  Tuslay 423 

Monprivatt  v.  Smith 290 

Monument,  etc.,  Co.  v.  Globe  Wks  136 

Moody  v.  Brown 367 

v.  Rowell 229 

v.  Walker 357 

v.  Whitney 185 

v.  Wright 362 

Mooney  v.  Miller 454 

Moore  v.  Bank 440 

v.  Graves 204 

v.  House 104 

v.  Piercy 383 

v.  Stevenson 197,  429 

v.  Watson 409 

Moreau  v.  Saffarans 251 

Morey  v.  Fitzgerald 443 

Morgan  v.  Congdon  , 296 

v.  Graff 351 

v.  Marquis 264 

v.  Richardson 268 

Morley  v.  Attenborough 350 

v.  Culverwell 55 

Morris  v.  Monroe 100 

v.  Platt 431 

Mormon  v.  Morrison 196 


Page. 

Morrison  v.  Perry 262 

Morse  v.  Aldrich 314 

v.  Carpenter 251 

v.  Copeland 317,  31!) 

v.  R.  R.  Co 222 

Mortimer  v.   Mortimer 190 

Morton  v.  Folger 224 

Moses  v.  Banker 379 

v.  Lawrence  Co.  Bank 405 

Moss  v.  Aver  ill 12  T 

Mossellcr  v.  Deaver. 435 

Mott  v.  Oppenheimer 314 

Mound  v.  Barker 413 

Mouse's  Case   447 

Mower  v.  Leicester 148 

Mowry  v.  Ins.  Co 230 

Mueller,  In  re 3!) 

Mueller  •".  Nugent 38 

Mugler  v.  Kansas 80,     82 

Mulford  v.  Shepard 47 

Mulgrave  v.  Ogden 44(5 

Mulligan,  In  re 31 

Mulligan  v.  R.  R.  Co 6(5 

Mulliner  v.  Florence 290 

Mumma  v.  Potomac  Co 132 

Mundy  v.  Wight 433 

Munger  v.  Munger 203 

Munn  v.  Illinois Si 

Munshower  v.  State 21<3 

Murchie  v.  Cornell 37") 

Murich  v.   Wright 381 

Murphy  v.  Jack 500,  501 

Murray  v.  Barlee 193 

v.  Hoboken  Land  Co 78 

Muschamp  v.  R.  R.  Co 66 

Musgrave  v.   Dickson 408 

Mutual  Life  Ins.  Co.  v.  Hunt 91 

Mutual  Reserve,  etc.  v.  Beatty.  .  .      37 
Myers  v.  Meinrath 37-'> 

N. 

Nachman,  In  re 32 

Naltner  v.  Dolan 21 

Nash  v.  Towne 352 

National  Bank  v.  Hall 93,     95 

v.  Merchants'   Nat. 

Bank 367 

v.  Thomas 261 

National,  etc.   v.  Landon 126 

National   Park   Bank   v.   German, 

etc.,   Co 127 

National     Park     Bank    v.    Ninth 

Nat.  Bank 44,     49 

Naumberg  v.  Young 232 

Needles  v.  Needles 198 

NeftV  Appeal    417 

Nelson  v.  First  Nat.  Bank 414 

Nepean  v.  Knight 219 

Nevin  v.  P.  P.  C..Co..  61 


TABLE  OF  CASES. 


xli 


rage. 

Kevins  v.  Peoria 150 

v.  Townsend 257 

Newberry  v.  Furnival 377 

Newcomb  v.  Raynor 52 

v.  Williams 320 

Newell  v.  Nicholas 219 

New*    England,    etc.,    Ins.    Co.    v. 

Schettler 242 

New    Jersey,    etc.    v.    Fire    Com- 
missioners    151 

N.  0.  Gas  Co.  v.  La.  Light  Co ...  89 

Newhall  v.  Vargas 64,  385 

Newman  v.  Newman 465 

Newton  v.  Chorlton 410 

Newton   v.  Clarke 324 

v.  Harland 435 

v.  Heaton 267 

v.  Seamans'    Friend    So- 
ciety ...  :'.-. 323 

NCAV    York,    etc.,    R.    R.    Co.    v. 

Bristol 80 

N.  Y.  Econom.  Printing  Co.,  In  re  30 

N.  Y.,  etc.,  Co.  v.  Armstrong ....  245 

N.  Y.,  etc.,  Ins.  Co.  v.  Ins.  Co 243 

N.  Y.,  etc.,  R.  R.  Co.  v.  Schuyler.  3 

N.  Y.  Exchg.  Bk.  v.  Jones.  .. 418 

N.  Y.  Land  Co.  v.  Chapman 453 

New  York  L.  Ins.  Co.  v.  Fletcher.  242 

N.  Y.  Tunnel  Co.,  Matter  of.  .  .28,  37 

Niblo  v.  Binsse 354 

Nichols  v.  Commonwealth 170 

v.  Eaton 340 

v.  Marsland 444 

v.  Steamship  Co 117 

v.  Webb 227 

Nicl-ells   v.   Atherstane 308 

Nic'.lous  v.  Dahn 251 

NoV.lo  v.  Smith 294 

Noel   v.    Ewing 194 

Nolan  v.  Whitney Ill 

Noodling  v.  Knickerbocker 269 

Noonan  v.  Orton 267 

Norman  v.  Westcombe 290 

Norrington  v.  Wright.  ..  114,  370,  382 

Northern  Ins.  Co.  v.  Wright 404 

North  v.  Mendel 396 

North   Bank  v.  Abbott 224 

v.  Porter   Township.  152 

North  Brookfield  v.  Warren 225 

Northrop  v.  Graves 347 

Northwestern,  etc.  v.  Shaw 135 

Norton  v.  Mallory 461 

Norway  Plains  Co.  v.  R.  R.  Co..  .  66 

Norwich  v.  Breed 436 

v.  Hubbard  ...  -. 333 

Noyes  Bros.,  In  re 29 

Noyes  v.  Colby 442 

v.  Ward 316 

Nutter  v.  Wheeier 363 

Nutting  v.  R.  R.  Co 66 


0.  Page. 

Oakes  v.  Weller 402 

Gates  v.  Nat.  Bank 4,7 

O'Brien   v.  Gilchrist 70 

v.  Jones 378.,  379 

v.  R.  R.  Co 75 

v.  Young 340 

O'Connor  v.  Hurley 356 

v.  Majoribanks 235 

Odom  v.  Odom 195 

O'Donnell  v.  R.  R.  Co •. 14 

Offord  v.   Davies 42-> 

Ogburn  v.  Connor 319 

Ogden   v.    Saunders 26 

v.  Ins.    Co 'j 

Ogg  v.  Shuter 387 

Ohio  Thresher  Co.  v.  Hensel 413 

Old  Colony  R.  R.  Co.  v.  Evans.  .  .  183 

Oldtown,  etc.,  R.  R.  Co.  v.  Veazie.  133 

Oliver  v.  Worcester 147,  150 

Olleman  v.  Reagan. 256 

Ollive  v.  Booker 110 

Olmstead  v.  Beale 113 

v.  Winsted  Bank   236 

O'Neill  v.  Mass.  Ben.  Ass'n 110 

Omichund  v.   Barker 234 

Ormsbee  v.  Howe 100 

O'Rourke  v.  R.  R.  Co 67 

Ortman  v.  Weaver 93 

Orton  v.  Scofield 23 

Osborn  v.  Cunningham. 410 

v.  Robbins 413 

Ostrander  v.  Conkey 480 

Ouimit  v.  Jienshaw <4 

Overfield  v.  Christie 30G 

Overman  v.  Sanborn 3L> 

Overman's  Appeal 340 

Overton  v.  Tyler 41 

Owen  v.  Knight 284 

Owings  v.  Hull 217 

Oxenham  v.  Clapp 325 

Oxford  Bank  v.  Haynes 57 

Oxley  v.  Lane 339 

v.  Watts 44S 

P. 

Packard  v.  Getman 446 

Paddleford  v.  Thacher 415 

Paddock   v.   Wells 192 

Page  v.  Morgan 393 

Page's  Estate   209 

Paige  v.  Cagwin 220 

v.  O'Neal 397,  463 

Paine  v.  C.  V.  R.  R.  Co 51- 

v.  Stewart 145 

Palmer  v.  Gould 2U 

v.  Hussey 37 

Panama  Tel.  Co.  v.  India  Rubber 

Co 25 

Parcell  v.  McComber 1 '  3 

Parfitt  v.  Lawless.  .             322 


xlii 


TABLE  OF  CASES. 


Page. 
Park  Bros.  &  Co.  v.  Blodgett  &  C. 

Co 213 

Parke  v.  Frank .- 18 

v.  Koser 49 

Parker  v.  Baxter 364 

v.  Brancher 21,  297 

v.  Canfield 243 

v.  Foote 304,  318 

v.  Macomber 264 

v.  Moore 461 

v.  Scott 355 

v.  Shackelford 180 

v.  Smith 20 

v.  Stroud 56,  57 

Parks  v.  Hall 380 

Parsons  v.  Harrold 418 

v.  Hayes  ...  .-..." 139 

v.  Joseph 139 

Parton  v.  Hervey 191 

Passinger  v.   Thorburn 184 

Patchin  v.  Biggerstoff 384 

Patmor  v.  Haggard 405 

Patten  v.  Deshon 313 

Patten's  Appeal   385 

Patterson  v.  Patterson 355 

Paul  v.  Detroit 85 

v.  Virginia 76,  124 

Paulding  v.  Chrome  Co 142 

Pauli  v.  Commonwealth 175 

Paxson  v.  Sweet 82 

Payne  v.  People 168 

Peacock  v.  Peacock 270 

v.  Rhodes * '  47 

Pearce  v.  Chamberlain 271 

v.  Hooper 231 

Pearks  v.  Moseley 345 

Pearson  v.  Dolman 337 

v.  Pearson 193 

v.  The  Commercial,  etc., 

Co 94 

Pease,  Re   255 

Pease  v.  Cole 261 

v.  Pease 197 

v.  Smith  ...  446 

Peck  v.  Peck 190 

Peek  v.  Gurney - 454 

Peirce  v.  Weber 7 

Pelton  v.  Plainer 216 

v.  R.  R.  Co 67 

Pembina,  etc.,  Co.  v.  Penn.76,  77,  79 

Pence  v.  State 169 

Pendlebury  v.  Walker 410 

Penn  v.  Lord  Baltimore 212 

Pennington  v.  Meeks 429 

Pennsylvania  Coal  Co.  v.  Sander- 
son"   179 

Pentz  v.  Stanton 18 

People  v.  Belden 167 

v.  Call .167 


People  v.  Cook 155,  433 

v.  Cotteral 164 

v.  Croswell 158 

v.  Davis 225 

v.  Detroit 147 

v.  Dickie • -.  .  .  175 

v.  Haynes 173,  174 

v.  Ins.  Co 244 

v.  Johnson '171 

v.  Jones lot 

v.  Kelly 157.  16J 

v.  Marx  .  .    SI 

v.  McElvaine 22!) 

v.  McGowan 178 

v.  McKane 50! 

v.  Moran 154 

v.  O'Brien 132 

v.  O'Xeil 472 

v.  Peacock 175 

v.  Richards 160 

v.  Roby 13 

v.  Smith 84 

v.  Thomas 172 

v.  Thompson 103 

v.  Township  Board   23 

v.  Wadsworth 171 

v.  Warren 44') 

v.  Wiley 168 

v.  Williams 161 

v.  Woodward 161) 

People  ex  rel.  Cook  v.  Becker ....  500 

Percy  v.  Millaudon 128 

Perham  v.  Coney 446 

Perkins  v.  Goodman 405 

v.  Ladd 326 

Pernam  v.  Wead 30'J 

Perry  v.  Keene .' 86 

Peters  v.  Company 460 

Peterson  v.  Russell -. .  401 

Peto  v.  Reynolds 41 

Pettee  v.  Appleton 243 

Pettengill  v.  Porter 311 

Phelps  v.  Conant -.  .  .  4(iS 

v.  Morrison 463 

Phila.,  etc.,  R.  R.  Co.  v.  Cowell .  .  8 

Philippi  v.  Philippi 47<) 

Phillips  v.  Barnet 200 

v.  Earle (!  5 

v.  Foxall 42:J 

v.  People 15!> 

v.  Phillips 40.", 

Philpot  v.  Briant 5'2,  53 

Phipps  v.  Ennismore 338 

Phoenix  Ins.  Co.  y.  Bailey 244 

v.  Hoffheimer .  .  244 

Picken  v.  Matthews 345 

Pickersgill   v.   Lahens ...  427 

Pidcock  v.   Bishop 424 

Pierce  v.  Brown 332  . 


TABLE  or  CASES. 


xliii 


Page. 

Pierce  v.  Burnham 198 

v.  Cooley 382 

v.  Dyer 317 

v.  Faunce 463 

v.  McClellan 252 

Piggott's  Case  280 

Pigot's  Case 231 

Pike  v.  Hanson  441 

Pinches  v.   Church 353 

Pinckney  v.  Dambmann 117 

Pitts  v.  Lancaster  Mills 319 

Pleasants  v.  Pendleton 365 

Plimpton  v.  Bigelow 490 

Plumley  v.   Massachusetts 90 

Plymouth  v.  Carver 314 

Polak  v.  Everett 418,  419 

Poland  v.   Brownell 454 

Pollard  v.  Lyon 438,  439 

Pollen  v.   Brewer 435 

Pollock  v.  Cohen .  . ; 6 

Pomerov  v.  Benton 272 

Pond  v.  R.  R.  Co 142 

Poole  v.  Webster 1 

Poole's  Case  329 

Pooley  v.  Driver 249 

Poorman  v.  Mills 48 

Pope  v.  Allis 377 

v.  Town  of  Union 316 

Port  v.  Port 191 

Portage  v.  Cole 106 

Porter  v.  Dunn 353 

v.  Powell 203 

Portsmouth   v.   Portsmouth 193 

Potter  v.   Couch 336,  337 

Potts  v.  R.  R.  Co 69 

Powell  v.  Maguire 259 

v.  Myers  ...  67 

v.  Penn 80,     82 

Powers  v.  Davenport 64 

v.  Russell 217 

Pratt  v.  Gardner 448 

v.  Page 262 

v.  Pratt 140 

v.  Sweetser 317 

Prather  v.   Smith' 414 

Pray  v.  Mitchell 391 

Presbyterian  Church  v.  Cooper ...     99 

Prescott  v.  Locke 390 

v.  Norris 205 

v.  White 317 

President,  etc.   v.   Chilicothe.  .  .  .  150 

v.  Willis 45 

Preston  v.  Bowmar 309 

Prettyman  v.  Lawrence 290 

Prevost  v.  Gratz 470 

Price   v.  Durin 396 

v.  Furman 207 

v.  Xeal 49,  349 

v.  R.  R.  Co 67 


Page. 

Price  v.  Sharp 55 

v.  Torrington 226,  236 

Prince  v.  Hazelton 321 

Pritchard  v.  Hewitt 189 

Proctor  v.  Adams 444 

v.  Jones .392,  393 

Prout  v.  Pittsfield  Fire  District. .    100 

Pullen  v.  Pullen 236 

Punderson  v.  Brown 333 

Purdy  v.  Powers 269 

Putnam  v.  Field 463 

v.  Ins.  Co. 242 

v.  Schuyler 413 

v.  Street  Ry.  Co 72,     73 

v.  Town 203 

v.  Woodbury 97 

Pye,  Ex  parts 453 

Q. 

Queen  v.  Manning 219 

Quimby  v.  R.  R.  Co '. 72 

Quin  v.  Hill 355 

R. 

R.  R.  Co.  v.  Allerton 139 

v.  Am.  Oil  Works 69 

v.  Backman 65 

v.  Barron 187 

v.  Baugh 15 

v.  Bolton 14 

v.  Brooks 72 

v.  Gary  .............  125 

v.  Converse 221 

y.  Cowell 8 

v.  Derby 11 

v.  Flexman 73 

v.  Fraloff 74 

v.  Gage 70 

y.  Hanning 12 

v.  Hawthorne  ...  ....  222 

v.  Hazen 64 

v.  Hummell 437 

v.  Hutchins 295 

v.  Jenkins 69 

v.  Lewis It 

v.  Lockwood 65,  68 

v.  Maris 66 

v.  Marseilles 12S 

v.  McDaniels 22-'! 

v.  McGown  .  .  .  • 72 

v.  Morrison 65,  74 

v.  Nolan 469 

v.  O'Brien 228 

v.  Pennell 187 

v.  People 70 

v.  Quigley 130 

v.  Rafferty 437 

v.  Robbina 223 

v.  Rogers 75 


xliv 


TABLE  OF  CASES. 


Page. 

R.  R.  Co.  v.  Ross 15 

v. -Shea 63 

v.  Smith 437 

v.  Spangler 16 

v.  Stevens 72 

v.  Voelker 221 

v.  Wynn 65 

Radley  v.  R.  R.  Co , 452 

Rafl'erty  v.  People 162 

Raffles  v.  Wichelhaus 95,  373 

Ragan  v.  Aiken 70 

Ranelaugh  v.  Hayes 412 

Ranson  v.  Mack 60 

Rapier,  In  re 82 

Rawls  v.  Ins.  Co 'L 240 

Rayburn  v.  Comstock 117 

Raymond  v.  Fitch 326 

Raynay  v.  Alexander 105 

Raynes   v.   Bennett 201 

Read  v.  Coker 430 

v.  Edwards 44.3 

v.  Legard 201 

Read's  Case   32o 

Reckly  v.  Tenbroeck » 379 

Redd  v.  Burrus 361 

Redfield  v.  Tegg 23 

Redington  v.  Woods.  . 49 

Reed  v.  Phila.,  etc.,  R.  R.  Co 36G 

v.  State 167,  1G8 

v.  Wash.  Ins.  Co 103 

Rees   v.   Berrington 415 

Reese  v.  U.  S 421 

Regina  v.  Baldry 220 

v.  Bryan 172 

v.  Buckmaster 166 

v.  Bunce 166 

v.  Case 163 

v.  Closs 174 

v.  Dudley 154 

v.  Eagleton  .  .  .  .  .' 173 

v.  Edwards 163 

v.  Finkelstein 175 

v.  Jones 173 

v.  Kenny 169 

v.  Kenrick  . 160 

v.  Manning 219 

v.  Masters 167 

v.  Mayers 163 

v.  Morgan 224 

v.  Rose 154,  433 

v.  Rowton 223 

v.  Sampson 172 

v.  Stephens 13 

v.  Thurborn 167 

v.  Townley 168 

v.  Watts 168 

v.  West 168 

v.  Wiley 174 

Reherd  v.  Clem. .   362 


Page. 

Reichenback  v.  Spethmann 501 

Reif  v.  Paige 97 

Reilly  v.  Dodge 427 

Reinheimer  v.  Hemingway 254 

Relyea  v.  Mill  Co 70 

Remick  v.   Sandford 393 

Remy  v.  Olds 117 

Reserve,  etc.,  Co.  v.  Kane 240 

Respublica   v.   Malin 154 

Reynolds  v.  Hussey 438 

v.  Manning 224 

v.  R.  R.  Co 61 

v.  Reynolds 192,  324 

Rex  v.  Barnard 172 

v.  Dickinson 169 

v.  Gould 170 

v.  Harringworth 231 

v.  Isaac 163 

v.  Knollys 279 

v.  Murray 167 

v.  Napper 170 

v.  Pitman 16tf 

v.  Walsh 16'3 

v.  Watson 230 

v.  Webster 168 

v.  Wheatley ;   153 

v.  Whitehead *.    160 

v.  Williams 172 

v.  Wills 169 

Rhodes  v.  Amsinck 254' 

v.  Blackiston 466 

v.  Forwood 24 

Rialto,  The   71 

Rice  v.  Doniphan 267 

v.  State 174 

v.  Stearns 45 

v.  Wood  . 23 

Richards  v.   Frankum 284 

Richardson  v.  Anthony 434 

v.  Humphreys 32S 

v.  Merritt 412 

v.  R.  R.  Co 320 

v.  Richardson 323 

Richmond's  Appeal   322 

Ricker  v.  Cross 363 

Rider  v.  Bagley 505 

v.  Kelley 367 

Riggs  v.  Riggs 324 

v.  Tayloe 231 

Riker  v.  Sprague  Mfg.  Co 41 

Ring  v.  Hardwick 343 

Rippy  v.  State 432 

Rivers  v.  Augusta 149 

Robbins  v.  Robbins 197,  461 

Roberts  v.  Graham 18S 

v.  Hawkins '.   40 1 

v.  Lane .50 

v.  State 162 

Robertson  v.   Deatherajre.  .  .   408 


TABLE  OF  CASES. 


xlv 


Page. 

Robinson,  Ex  parte 157 

Robinson  v.  Baker 69,  297 

v.  Crowder 265 

v.  Ins.  Co 240 

v.  Jarvis 23 

v.  Lyman 50 

v.  Mollett 22 

v.  Pogue 360 

v.  Ray  ley 289 

v.  Randolph 339 

v.  Skipworth 384 

v.  Walter 290 

v.  Weeks 207 

Robson  v.  Drummond 267 

Roby  v.   Smith 77 

Rochester     White     Lead     Co.     v. 

Rochester 150 

Rockford,  etc.,  R.  R.   Co.  v.  Raf- 

ferty .' 437 

Rockwell  v.  Taylor 228 

v.  Wilder 258 

Rodrian  v.  R.  R.  Co 221 

Roe  d.  Hunter  v.  Galliers 336 

Roe  v.  Tranmer 309 

Roeber,  In  re 33 

Rogers  v.  Custance 290 

•    v.  Gallagher 55 

v.  Maddox 120 

v.  Verona 487 

v.  Woodruff 382 

Rohrbach  v.  Ins.  Co 239 

Rolland  v.  Commonwealth 164 

Rombach  v.  Ins.  Co 241 

Root  v.  King 438 

Roper  v.  Sagamon  Lodge 422 

Roscorla  v.  Thomas 103 

Rosenkraus  v.  Barker 269 

Rosenthal  v.  Dessau 387 

Rosevelt  v.  Brown 140 

Rosher,  In  re ; 337 

Rosa  v.  Duncan ".....  462 

v.  Howell 268 

v.  Innis 170 

v.  Jones 45,  53 

v.  Philbrick 447,  449 

Ros?er,  In  re 32,  38 

Rothschild  v.   Frank 424 

v.  Grix 45 

Rourke  v.  Colliery  Co 10 

Rouse,  Hazard  &  Co.,  In  re 34 

Rousillon  v.  Rousillon 120 

Rowe  v.  Hawkins 433 

v.  Sharp 381 

Ruffin,  Ex  parte 253 

Ruggles  v.  Lawson 315 

Rumsey  v.  Phoenix  Ins.  Co 239 

Run?  Furn.  Co.,  Matter  of 28 

Rushforth  v.  Hadfield 69 

Russell  v.  Men  of  Devon .  .            .  148 


Page. 

Russell  v.  Nicoll  382 

v.  People's  Savings  Bank.  199 

v.  Phillips 44 

Russell  &  Birkett,  In  re 31 

Rutland,  etc.,  Co.  v.  Proctor 135 

Ryan  v.  R.  R.  Co 72 

Ryder  v.  Hathaway 295 

Ryder  v.  Wombell 205 

S. 

Sackrider  v.  McDonald 449 

Sadler  v.  Lee 270 

Safford  v.  Grout 454 

Salinger  v.   Lusk 482 

Salisbury  v.  Howe 453 

v.  Renick 102 

Salmon,  etc.,  Co.  v.  Goddard 395 

Salomon  v.  Hathaway 377 

Salt,  etc.,  Bank  v.  Burton 57 

Salt  Springs  Nat.  Bk,  v.  Sloan .  .  404 

Samuel  v.  Cheney : 67 

Sanders  v.  Barlow 405 

V.  Wilson 384 

Sandford  v.  Wiggins  Ferry  Co ...  367 

Sanford  v.  Lockland.  .  .  . : 339 

Sanford  v.  Nickels 264 

Sargent  v.  Southgate 51 

Sasser  v.  State 175 

Saunders  v.  Vautier 339 

Saunder's  Case    161 

Savage  v.  Mason 314 

Savile  v.  Roberts 18S 

Savings  Bank  v.  Ward 436 

Sawyer  v.  Chambers 413 

v.  Hoag 14'J 

v.  Kendal 30(J 

Sayer  v.  Bennett 271 

Sayston  v.  Hack 270 

Sayward  v.  Stevens 69 

Scarf  v.  Jardine 262 

Schaefer,  In  re 29 

Scheld,  In  re 32 

Schermerhorn  v.  Negus 337 

Schofield  v.  R.  R.  Co 70 

v.  Whitelegge 487 

Scholey  v.  Halsey 359 

School  District  v.  Benson 305 

Schoonmaker  v.  Spencer 501 

Schubert  v.  Clark  Co 430 

Schultz  v.  Brers 31S 

Schumpert  v.   Dillard 251 

Schwab  v.  Cleveland 467 

Schweer  v.  Brown 38 

Schwenk  v.  Nay  lor 45^5 

Scofield  v.  Whitelegge 487 

Scollans  v.  Flynn 4 1 

Scott  v.  Boga'rt 267 

v.  Bryan 40H 

v.  Coal  Co.   .                          .  11T> 


xlvi 


TABLE  OF  CASES. 


Tage. 

Scott  v.  Eagle  Fire  Ins.  Co . .    140 

v.  Kittanning  Coal  Co 382 

v.  Sampson 223 

v.  Timberlake ..-. .  . .  412 

Scottish,  etc.,  Ins.  Co.  v.  Clancy..  240 

Scovill  v.  Griffith 64 

v.  Seeley •. .  .  279 

Scribner  v.  Collar 23 

Scroggin  v.   Holland 413 

Scruggs  v.  Burruss 265 

Scudder  v.  Bradford 71 

Scull,  Appeal  of 250 

Sears   v.   Dillingham 323 

Seaver  v.  R.  II.  Co 14 

Seavey  v.  Preble 444 

Seeley  v.  Welles 112 

Seifert  v.  Brooklyn 150 

Seipel  v.  Ins.  Co Ill 

Seiple  v.  Irwin 39S 

Seller  v.  S.  S.  "  Pacific  " 65 

Semmes  v.  Ins.  Co 245 

Sennett  v.  Shehan 354 

Sessums  v.  Botts 450 

Sewell  Falls  Bridge  Co.  v.  Fisk .  .  129 

Seybel  v.  Bank 47,  48,  140 

Seymour  v.  Brown 362 

v.  Xewton 385 

Shackelton  v.  Shackelton 197 

Shaniburg  v.  Ruggles 263 

Shanks  v.  Klein 2G5 

Shannon  v.  Kinny 30r» 

Sharp   v.   Grey 7.5 

Shaw  v.  Gilmore 361 

v.  R.  R.   Co 70 

v.  Republic  L.  Ins.  Co 110 

v.  Smith' 41 

v.  Spencer 464 

v.  Stein 454 

Shawn-nit,      etc.,      Ins.      Co.      v. 

Stevens 241,  243 

Sheahan  v.  Barry 117 

Shealy  v.  Toole 93 

Shearer  v.  Shearer 251,  252 

Shedd  v.   Bank 268 

Sheeren  v.  Moses 115 

Sheffield  v.  Van  Dusen 438 

Sheik  v.  Hobson 181 

Sheldon  v.  Carpenter 188 

v.  Tns.  Co 244 

Shepard  v.  Buffalo,  etc.,  Co 17 

v.  De  Bernales   69 

v.  "Rhodes 98 

Shepaus:  Votin?  Trust 141 

Shephard   v.    Shephard 199 

Shepherd  v.   People 164 

Sheppard  v.  Oxenford 271 

Sheridan  v.   Jackson 487 

Sherman  v.  Trans.  Co 303 

Sherraden  v.  Parker..                    .  417 


Tage. 

Sherry  v.  Gilmare 25 1 

Sherwood  v.  Stone 403 

Sherwood  v.  Sutton 470 

Shiells  v.  Blackbume 21 

Shippey  v.  Henderson 101. 

Shirras  v.  Caig '. 4(J5 

Shober  v.  Jack 220 

Shoemaker  v.  State •  161 

Shore  v.  Wilson 233 

Short  v.  Stone 1  l.i 

v.  Syir.ms 449 

Shorter  v.  People 432,  433,  434 

Shove  v.  Wiley 226,  227 

Shriver  v.  R/R.  Co 63,  68 

Sliulleff  v.  Parker 439 

Sidney,  The    240 

Siegef  v.  Gould 23 

Sieveking  v.  Button 282 

Sillitoe,  Ex  par[e 257 

Cilsbury  v.  McCoon 295 

Silverberg  v.  Ins.  Co 242 

ffimar  v.  Canady 454,  455 

Simmons  v.  Cloonan 311 

v.  More 39t> 

Simonds  v.  Kurd 10 

Simonton  v.  First  Bank 458 

Simpson  v.  Crispin 115 

v.  X.  Y.  Rubber  Co 17 

Singer  v.  Maryland 83 

Singleton  v.  Gilbert 345 

v.  Ins.  Co 241 

Sinnett  v.  Herbert 344 

Sioux  City  R.  R.  Co.  v.  Bank 3 

Sisson  v.  R.  R.  Co 21(5 

Six  Carpenters'  Case,  The 295,  447 

Skellinger  v.  Howell 236 

?killman  v.  R.  R.  Co •. 75 

Skillman  Hardware  Co.  v.  Davis..  115 

Skinner  v.  Dayton 271 

v.  Upshaw 296 

Slannin$  v.   Style 199 

Slater,  Ex  par'ie 26f> 

Slater  v.  Rawson 315 

Slatterie  v.  Pooley 230 

Slaughter  v.  Greene 3G2 

Slayir.aker  v.   Bank 29-J 

Sleeper  v.  Chapman 46 1 

v.  Laconia 309 

Slocombe  v.  Lyall 283 

Slocum  v.  Providence 125 

Slomka,  In  re •. 34 

Small   v.   Currie 422 

Smart  v.  Blanchard 429 

v.  Hyde 237 

v.  Sanders 21 

v.  White 352 

Smith   v.  Allen 40 

v.  Arnold 502 

v.  Bromley 352 


TABLE  OF  CASES. 


xlvii 


Page. 

Smith  v.  Bryan 392 

v.  Clark 362 

v.  Commonwealth 154 

v.  Faxon 445 

v.  Gates  .  .   . .  : 449 

v.  Harrington 339 

v.  Holcomb , 181 

v.  Howard 440 

v.  Hurcl 138 

v.  Ins.  Co 242 

v.  Knight 24S 

v.  Morrill 29-3 

v.  Nat.   Ben.  Ass'n 245 

v.  Nightingale 41 

v.  Orser 254,  502 

v.  Palmer 23.) 

v.  Parsons 282 

v.  Poillon '....      60 

v.  R.  R.  Co 180 

v.  Rathbun 486 

v.  Rumsey  . 400 

v.  Sloan  * 261 

v.  Smith 294 

v:  State 164,  430 

v.  Towers 340 

v.  Wheeler 308 

v.  Young 440 

Smythe  v.  Sturges 113 

Snell,  In  re .'....     33 

Snell  v.  Ins.  Co 241 

Snider  Sons  Co.  v.  Troy 126 

Snyder,  In  re 172 

Snyder  v.  May 260 

Society  Perun  v.  Cleveland.  ......    126 

Sohier  v.  Loring 53 

Sohram  v.  Werner  t 411 

Somerby  v.  Buntin .  ,, 39 1 

Somers  v.  Pumphrey 311 

Sonoma  Bank  v.  Gove' 50 

Soper  \\  Fry 268 

Southcote  v.  Stanley 437 

Southern  Development  Co.  v.  Silva  45;] 
Southern  L.  Ins.  Co.- v.  McCain..  230 
Southwick  v.  Southwick ........  t  235 

Spain  v.  Hamilton 465 

Spaits  v.  Poundstone ,   438 

Spalding  v.  Rosa Ill 

v.  Ruding 388 

Spaulding  v.  Andrews 43 

v.  Lowell 147 

v.  Oakes 429 

Spence  v.  Ins.  Co 295 

Spencer  v.  Bemis 290 

v.  Fowles 21 

v.  Merchant 78 

Spencer's  Case    312,  313 

Sperry  v.  Horr 41 

Spiller  v.  Westlake. 108 

Spofford  v.  Hanow.  .  .' 448 


Page. 

Spooner  v.  Holmes 440 

v.  Manchester 44tJ 

Springer  v.  Cabell 258 

v.  Kleinsorge 396 

Squires  v.  Seward 283 

St.  Barbe,  Ex  parte 257 

St.  John  v.  Ins.  Co 240 

St.  Joze  Indiano,  The 366 

St.  Louis  Co.  v.  Johnston 457 

Staats  v.  Bristow 502 

Stadtfield   v.   Huntsman 384 

Stalker  v.  McDonald 48 

Stanley  v.  State .....  T 15G 

Staple  v.  Haydon 292 

Staples  v.  Sprague 268 

Star  of  Hope 71 

Stark  v.  Parker 353 

Starr  v.  Haskins 46 1 

State  v.  Anderson 175 

v.  Asher 172 

v.  Balch 440 

v.  Brown 177 

v.  Bryson 432 

v.  Burnharn 433 

v.  Campbell 75 

v.  Caverly 176 

v.  Chandler 157 

v.  Coombs 169 

v.  Cooper 165 

v.  Craig  .  . 166 

v.  Davis 169,  1D.J 

v.  Dawson 125 

v.  Donnelly 434 

v.  Downer -. .  . .   450 

v;  Estes 172 

v.  Foster  .  . 178 

v.  Gazell 16i5 

v.  Girkin 160 

v.  Greesdale 20,  468 

v.  Hall 10-$ 

v.  Heineman 83 

v..Hoit 102 

v.  Hughes 36*? 

v.  Hurd 164 

v.  Innes 177 

v.  Jones 166 

v.  Lyon 164 

v.  Mayberrv 160 

v.  Mills 172,  173 

v.  Mo.  Pac.  R.  R.  Co 74 

v.  Moore 168,  447 

v.  Morris,  etc.,  R.  R.  Co...  .    130 

v.  Murray 160 

v.  Norris 157 

v.  Noves 160 

v.  O'Brien 162,   105 

v.  O'Neil SOS 

v.  O«awkee 86 

v.  Patterson 434 


xlviii 


TABLE  or   CASES. 


Page. 
State  v.  Phelps  ................   220 

v.  Plym  ................   219 

v.  Randolph  ............   23ii 

v.  Rawls  .....  ...........   23'i 

v.  Renton  ...............    158 

v.  Richardson  ...........   450 

v.  Robinson  .............    175 

v.  Rowe  ................    105 

v.  Rowley  ...............    160 

v.  Ryan  ................    169 

v.  Scott  ................    155 

v.  Scripture  .............    164 

v.  Shephe'rd  .  ............    162 

v.  Sherman  .............   433 

v.  Shermer  .  ,  ............    169 

v.  Smith  ............  175,  218 

v.  St.  Clair    ..............    174 

v.  Standard  Oil  Co  ........    141 

v.  Stratton  ..............    175 

v.  Taylor  ................    159 

v.  Toole  ................    164 

v.  Turnpike  .............    129 

v.  Underwood  .......  ....    156 

v.  Walker  ..............    190 

v.  Warren  ..............    164 

v.  Weed  ................   449 

v.  Wilson  ...............    164 

v.  WTyatt  ...............    157 

v.  Zellers  ...............   434 

State  Bank  v.  Knoop  ............     89 

State  Board,  etc.  v.  R.  R.  Co  .....    135 

Steacy  v.  R.  R.  Co  ..............    144 

Stead  v.  Thornton  ..............        1 

Steamboat  Lynx  v.  King  ........      63 

Stearns  v.  Haughton  ..........   264 

v.  Marsh  .............   297 

Stebbins  v.  Crawford  ..........    102 

v.  Duncan  ...........   230 

Steel  v.   Dixon  .................   411 

Steele  y.   Bank  .................   268 

Steiger  v.  Erie  R,  R.  Co  .......  .  .      64 

Stein,  In  re  ....................      34 

Stein  v.  La  Dow  ..........  .-  .....   26-5 

Steinmetz  v.  Kelly  ..............   453 

Stensiraard  v.  Sniith  ............      18 

Stephens  v.  Elwall  ...........   446 

v.  Stephens  ..........   341 

Stephenson  v.  Ins.  Co  ...........   246 

v.  Little  ...........   434 

Sterling  v.  Xarden  ..............   434 

Stetson  v.  Patten  ...............        7 

Steuben  Co.  Bank  v.  Alberger.430,  502 
Stevens  v.  Bank  ..............   268 

v.  Middleton  ..........   429 

Stevenson  v.  McLean  ..........     93 

v.  Smith  ............    188 

Stewart  v.  Eden  ..............     57 

v.  Emerson  ...........    454 

181 


v. 

v.  Woodward 


Page. 

Stickler's  Appeal  250- 

Stiles  v.  Davis 6» 

Still  v.  Focke 250 

Stillman  v.  Dresser 401 

v.  Harvey 259,  2til 

Stillson  v.  Gibbs 181 

Stinson  v.  Gardner 279 

Stockclale  v.  Keyes 26(> 

Stoddard  v.  Ham 95,  373 

Stoffer  v.   State 434 

Stolz  v.  Doering 191 

Stone  v.  Browning 393^ 

v.  Compton 423- 

v.  Mississippi 891 

v.  Varney 22* 

v.  Waitt 67 

Storber   v.    Thudium 500 

Storrs  v.  Benbow 34  "> 

v.  Utica 12 

Storrs  Agric.  School  v.  Whitney.  34-i- 

Story  v.  Ashton 11 

Stout  v.  Zulick 12(> 

Stover  v.  Bluehill 187 

Strange  v.  Fooks 418 

Streeper  v.  Williams 182 

Street  v.  Blay 374 

Streit  v.  Sanborn 47 

Strickle^  v.  Conn 262 

Strong  v!  Foote 20.> 

v.  Ins.  Co 243,  241 

v.  Sproul 485- 

Stuckey  v.  Savings  Bank 33 

Stucky  v.  Clyburn 376 

Studcfs  v.  Watson ' 39-> 

Stull  v.  Harris 91 

Sturges  v.  Crowninshield 26- 

Sturgis       v.       Theological,       etc., 

Soc 12 

Sugden  v.  Lord  St.  Leonards 230 

Sullivan  v.  Sullivan '..'...  323 

v.  Waters 437 

Sumner  v.  Woods 381 

Sunderland,  Goods  of 323 

Surocco  v.  Geary 444 

Susong  v.  Valden 427 

Sussdorf  v.   Schmidt 487 

Sussex  Bank   v.   Baldwin 57 

Sutton  v.  Beck  with 108 

Sutherland  v.   Bradner 502 

Suydam  v.  Ins.  Co 244 

v.  Westfall 53 

Swainson  v.  Ry.  Co 13 

Swan  v.  Xpsrn'ith 403 

v.  R.   R.   Co 75 

i  Swarts  v.   Siesrel 408 

;  Fwartwout  v.  R.  R.  Co 126 

i  Sweeney  v.  Ins.  Co 239 

Sweet  v.  Barney 67 

v.  Morrison 108 

v.  Parker  .  .331 


TABLE  OF  CASES. 


xlix 


Page. 

Sweetser  v.  Frentfh 261 

Swift  v.  Luce 200 

v.  Tyson 48 

Swigont  v.  A.spden •  262 

Synge  v.  Synge 338 

T. 

Taft  v.  Brewster 9 

v.  Stevens 332 

Tallmadge  v.  Bank 311 

Talmadge  v.  Oliver 383 

Taney  v.  Kemp 235 

Tarbel  v.  Bradley 251,  252 

Tarrabochia  v.   Hickie 114 

Tarrant  v.  Webb •.  15 

Tate  v.  Clements 26G 

Tatem  v.  Chaplin 313 

Tatton  v.  Wade 454 

Tayler    v.    Jeter 417 

Taylor,  Ex  parte 25G 

Taylor  v.  Hare 348 

v.  Meads 199 

v.  Smith 290 

v.  Wilson 250 

v.  Wrenn 112 

Tegler  v.  Shipman 368 

Templeton  v.  Shakley 417 

Temperance,  etc.  v.  Giles 222 

Terhune  v.  Dever 453 

Terry  v.  Munger 359 

Terwilliger  v.  Wands 438 

Texas,  etc.  R.  R.  v.  Rust 182 

v.  So.       Pacific 

Ry.  Co.  ...  120 

Thayer  v.  Buffum 249 

v.  Daniels 409,  465 

v.  Wellington 328 

Thellusson  v.  Woodford 342 

Third  Bank  v.  Lange : 464 

Third  Xat.  Bk.  v.  Owen 422 

Thomas  v.  Brown 354 

v.  Port  Hudson 151 

v.  State 163 

v.  Wason 417 

v.  Winchester 435 

Thomassen  v.  Van  Wyngaarden.  .  459 

Thompson  v.  Davenport 17 

v.  Erie  Ry.  Co 485 

v.  Howard 359 

v.  Phoenix  Ins.  Co. .  .  .  245 

v.  Sloan 40 

v.  Williams 352 

Thorn  v.  Shering ?S3 

Thome  v.  Deas 20 

Thorp  v.  Thorp 106 

Thorpe  v.  Coal   Co 314 

v.  Rutland,     etc.,     R.     R. 

Co 82,  132 

Threfall  v.   Berwick..                      .  296 


Tage. 

Thursby  v.  Lidgerwood 264 

Thurston  v.  R.  R.  Co 72 

v.  Whitney 234 

Thwing  v.  Hall 213 

Tidd  v.  Rines 251 

Tier  v.  Lampson 18 

Tiffany  v.  Bowerman 487 

Tilden  v.  Johnson 185 

Tillett  v.  Ward 443 

Tilley  v.  N.  Y.,  etc..,  R.  R.  Co.. . .  187 

Tillinghast  v.  Bradford  .  .   ..340,  407 

v.  Coggeshall 466 

Ti4ton  v.  Beecher 490 

Tippet  v.  May 281 

Titus  v.  Titus 328 

Tisdale  v.  Harris , 391 

Tobey  v.   Moore 342 

Todd  v.  Todd 193 

Tolen  v.   Tolen .  . .  .' 194 

Tolles-v.  Wood 467 

Tome  v.  Dubois 363 

Tomlinson  Co.  v.  Kinsella 51 

Tompkins  v.  Powell 463 

Tompson  v.  Dashwood 440 

Topham  v.  Morecraft 468 

Topping,  Ex  parte 258,  259 

Torrey  v.  Burnett 330 

Towle  v.  Dresser 2 

Towne  v.  Wiley , 205 

Townsend  v.   Whitney 409 

Townsley  v.  Chapin 198 

v.  Rumrall 59 

Tracy  v.  Atherton 218,  304 

v.  Gunn 183 

v.  Talmadge 352 

Trafford  v.  Hall 50 

Trainer  v.  Trumbull 91 

Trans.  Co.  v.  Chicago 86 

v.  Downer 68 

Transportation  Line  v.  Hope 61 

Trapp  v.  Wallace 24 

Travelers'  Ins.  Co.  v.  Edwards...  241 

Treadwell  v.  Reynolds 371 

Tresham  v.  Ford 279 

Trimble  v.  Foster 188 

Trist  v.  Child... 156 

Trott  v.  Colwell 198 

Troup  v.  Smith 470 

Troy  Bank  v.  Wilcox 464 

True  v.  Ranney 192 

Truesdell  v.  Thompson 40 

Tucker  Mfg.  Co.  v.  Fairbanks 9 

Tuckerman  v.  Hartwell 44 

Tulk  v.  Moxhay 314 

Tully  \.  Howling 113 

Tunnel  v.  Pettijohn 61 

Tupper  v.  Cadwell 205 

Turnbull  v.  Maddox 102 

Turner  v.  Crichton  .  .     505 


TABLE  or  CASES. 


Page. 

Turner  v.  Cruzen 151 

v.  Meyers 192 

v.  Ross 266 

v.  Webster 357 

Tuscaloosa  v.  Cox 138 

Tweddle  v.  Atkinson • 104 

Twenty-third   St.   Baptist   Church 

v.  Cornell    99 

Twynam  v.  Pickard 313 

U. 

U.  S.  v.  Am.  Bonding  Co 415 

v.  Amy U7 

v.  Cole 160 

v.  Crosby ' 320 

v.  Davis 168 

v.  Freel   421 

v.  Gooding 219 

v.  Greenhut '120 

v.  Guiteau 155 

v.  Holmes 154 

v.  Jones 155 

v.  Kirkpatrick   422 

v.  Macomb 224 

v.  Xelson 120 

v.  Price   , 427 

v.  Shellmire 157 

v.  Spalding 420 

v.  Wiltberger 161 

Udell  v.  Athe'rton 12 

Uline  v.  N.  Y.  C.  &  H.  R.  R.  R. 

Co 180 

Union  Bank  v.  Geary 100 

v.  Jacobs 127 

v.  Knapp 224 

Union,  etc.,  Ins.  Co.  v.  Pottker.  .  239 
v.       Wilkin- 
son ...  242 

Union  Express  Co.  v.  Craham.  ...  63 

Union  Hall  Ass'n  v.  .Morrison.  .  .  .  35G 

L  nion  Locks  v.  Towne 1ST 

Union  Trust  Co.,  In  re 34 

Universal    L.    Ins.    Co.   v.   White- 
head  238 

Upton  v.  Stunbridge  Mills  Co ....  8 

V. 

Vail  v.  Durant 290 

v.  West   Va.   Co 207 

Valpy  v.  Sanders 359 

Van  Brunt  v.  Applegate 251 

Van  Cortlandt  v.  Kip 328 

Van  Cott  v.  Van  'Brunt 144 

Van  Deusen  v.  Blum 348 

Van  Horn  v.  Campbell 337 

Van  Loori  v.  Lyons *  .  501 

Van  Xess  v.  Pacard 330 

Van  Wart  v.  Woolley 458 

Van  Wyke  v.  Brasher 91 


Page, 

Vanderbeck  v.  Hendfy 437 

v.  Vanderbeck  .....  52. 

Vassar  v.  Camp 9& 

Vaughen  v.  Haldeman 330 

Vaughn  v.  Hopson 364 

Veazie   v.   McGugin 462. 

Velona,  The   71 

Vermilye  &  Co.  v.  Adams  Ex.  Co.  51 

Vernon  v.  Manhattan  Co 262 

Vick  v.  R.  R.  Co 14 

Village  of  Chester  v.  Leonard...  417 

Vincent  v.  Mutual,   etc.,   Co 218- 

v.  Nantucket 151 

Vinton  v.  Peck 229 

v.  R.  R.  Co 72. 

Voorhis  v.  Baxter 25& 

Vosburgh  v.  Thayer 226 

Vose  v.  Dolan 2 

Vrecland  v.  Schoonmaker 467 

Vyse  v.   Wakefield US 

W. 

Wabash  R.  R.  Co.  v.  McDaniels. .  15 

Wade  v.  Simeon 9ft 

Wadley  v.  Buckingham 383 

Wagar  v.  Detroit,  etc.,  R.  R.  Co..  365 

Wagner  v.  Freschl 261 

Wagoner  v.   State 204 

Wain  v.  Warlters '. 394 

Waite  v.  Foster 264 

Wakeman   v.   Gowdy 418 

Walcott  v.  Van  Santvoord 56 

Waldele  v.  R.  R.  Co 228 

Walden  v.  Holman 278 

v.  Murdock 371 

Waldo  v.  Cummings 336 

Walker  v.  Brooks 458 

v.  Conant 348 

v.  Goldsmith 4 IS 

v.  Jones 282 

v.  Osgood 23 

v.  Supples 391 

v.  Walker 8- 

Wall  v.  Lee 433 

v.  Schneider 121 

Wallace    v.    Fletcher 304 

Waller  v.  Davis : 271  . 

Walsh  v.  Lennon 260 

v.  People 155,  156 

Walter  v.  James 7 

Walts  v.   Nichols 502" 

Ward  v.  Hackett 424 

v.  People 155 

v.  State 168 

v.  Turner 294 

v,  Williams 8 

Ware  v.  Cann 337 

Warner  v.  Bates 460 

v.  Beers 123- 


TABLE  OF  CASES. 


li 


Page. 

Warner  v.   Warner 325 

Warren  v.  Ball 263 

v.  Blake 312 

v.  Hooge 97 

v.  Paul 87 

v.  Southworth 310 

v.  State 430 

Wartman  v.  Breed 371 

Warwick  v.  Hutchinson 179 

Washburn  v.  Oilman 319 

v.  Van   Steenwyk .  .209,  320 
Washington,  etc.,  Co.  v.  Am.  Ins. 

Co , 238 

Washington  Ice  Co.  v.  Webster.  .  .  183 

Washington  Univ.  v.  Rouse 88 

Wasson  v.  Hodshire 418 

Watcrbury  v.  Waterbury 501 

Waterman  v.  Whitney 228 

Watertown,  etc.,  Co.  v.  Davis ....  382 

Watervliet  v.  AVhite '. 46 

Watson  v.  Perrigo 401 

Watkins  v.  Maule 46 

Watriss  v.  Bank 330 

Watts  v.  Hendry 365 

Waugh  v.  Carver 247,  248 

Way  v.  R.  R.   Co 72 

v.  Sperry 101 

Wayland  v:  Tysen 485 

Wead  v.  Larkin. . 315 

Weave  v.  Sawyer 413 

Webber  v.  Davis 363 

Weber  v.  Bridgman 19 

v.  Diebold,  etc.,  Co 384 

Weed  v.  Adams 21 

v.  Boutelle 465 

Weeks  v.  Sjmrke 226 

Weet  v.  Brockport 149 

Weil,  hi  re 31 

Weir  Plow  Co.  v.  Walmsley 420 

Welch  v.  Sackett 315 

v.  Wesson 448 

Welles  v.  March 265 

Wellington   v.   Janvrin 339 

Wells  v.  Head '.  445 

v.  Morrow 463 

v.  Navigation  Co 61 

v.  Seiss 261 

v.  Thomas 69 

Welsh  v.  Barrett 227 

v.  Welsh 356 

Wernwag  v.  R.  R.  Co 67 

West,  etc..  Bank  v.  Thompson....  53 

Westcott,  Ex  parte 257,  250 

Western,  etc.  v.  Philadelphia 147 

Western    X.    Y.    Life    Ins.    Co.    v. 

Clinton 424 

Westlake  v.  St.  Louis 359 

West  River  Bridse  Co.  v.  Dix 85 

Weston  v.   Charleston 87 


Page. 

Westover  v!  ^Etna,  etc.,  Co 235 

Westzinthus,  In  re 388 

Wetherbee  v.  Baker 144 

v.  Green  .  .  - 295 

Wetherell  v.  Everets 287 

Whale  v.   Booth 327 

Wharton  &  Co.  v.  Winch 117 

Wheeler  v.  Sage 211,  272 

v.  Van  Wart 270 

Wheelhouse   v.    Parr 369 

Wheelock   v.   Moulton 124 

Whipp  v.  State 202 

Whipple  v.  Thayer 370 

Whitcomb  v.  Converse 271 

White  v.  Bank 135 

v.  Carroll 440 

v.  Corliss 93 

v.  Drew 466 ' 

v.  France 437 

v.  Lang 448 

v.  Miller 18 1 

v.  R.  R.  Co 140 

v.  Sawyer 12,  269 

v.  Schloerb 38 

y.  State 157 

v.  Stoddard 58 

v.  Whitney 333 

Whitchead  v.  Bennett 330 

v.  Walker 44 

Whitford  v.  R.  R.  Co. 326 

Whiting  v.  Ins.  Co 6 

Whiton  v.  Spring 398 

Whitney  v.  Dutch 2,  200 

v.  Ladd 296 

v.  Stearns 462 

Whitney  Arms  Co.  v.  Barlow....  135 

Whittemore  v.  Elliott 254 

Wilcox,  In  re 27 

Wilcox  Co.  v.  Green 392 

Wild  v.  Davenport 272 

Wildes   v.   Savage 404 

Wildman  v.  R.  R.  Co 100 

Wiles  v.   Suydam 145 

Wiles,  etc.,  Co.  v.  Hahlo 29t>« 

Williams  v.  Jones. .  .' 337 

v.  Leper 407 

v.  Lyman 4^2 

v.  State 204 

v.  Williams 204 

Wilfred  v.  Myers 110 

Wilkins  v.  Davis 257 

v.  Pearce 268 

Wilkinson  v.  Heavenrich  .......  395 

v.  Henderson  ........  256 

Willett  v.  Blanford 272 

Williams,   Ex   parte 253 

Williams  v.  Bemis 351 

v.  Boice 142,  144 

v.  Evans  .                         .  393 


lii 


TABLE  OF  CASES. 


Page. 

Williams  v.  Germaine. .  . . : 44 

v.  Higgins 21 

v.  Ingersoll 465 

v.  Ins.  Co 6,  240 

v.  McKav 4V u 

v.  Sautter 248 

v.  Vreeland 401 

Williamsport  v.  Commonwealth..    151 

Willis  v.  State 204 

v.  Willis : 423 

Willison  v.  Watkins ,   305 

Wilson  v.  Brett 21 

v.   Crawford 409 

v.  City  Bank 28 

v.  Foot .- 416 

v.  Foree 358 

v.  Kimball 409 

v.  People 169 

v.  R.  R.  Co 74 

v.  Spencer 183 

v.  Tumman 5 

v.  Wilson 196 

Wilson  Bros.  v.  Nelson 28 

Wilton  v.  Eaton 93 

v.  Middlesex  R.  R 203 

Wimbledon,  etc.  v.  Dixon 317 

Winchelsea  v.  Higden 289,  290 

Winchester  v.  Craig 185,  18G 

v.  Nutter 121 

W7indham  Bank  v.  Norton 58 

Winn   v.   Dillon 23 

v.   Sanford 413 

Winslow  v.   Kimball 323 

Win^or   v.   Mills 338 

Winter  v.  Rockwell 317 

v.  Stock 251 

Winthrop  v.  Fairbanks 311 

Wisconsin  Cent.  R.  R.  Co.  v.  Price 

Co 86 

Wise  v.  Charlton 4^ 

v.  Hodsall 286,  283 

Withers  v.  Greene 375 

Withy  v.   Mumford 312 

Wittenbrock  v.  Bellmer 9 

Wolcott  v.  Van  Santvoord 56 

Wolf  v.  Des   Moines,    etc.,   R.   R. 

Co 182 

v.  Wall 326 

Wolfe  v.  Hawes 354 

Wolff   v.  Koppel 22 

v.  Wolff 310 

Wolmershausen  v.  Gullick 412 

Wonson  v.  Say  ward 168 

Wood  v.  Dudley 297 

v.  Drummer 142 

v.  Hammond  .  .  . 13o 

v.  Leadbitter 319 

v.  Scolos  .  .271 


Page. 

Wood  v.  Steele 420,  425 

Wood,  etc.,  Co.  v.  Smith 112 

Woodbridge  v.  Swann 264 

Woodenware  Co.  v.  U.  S 186,  295 

Woodin   v.   Durfee 425 

Woodman  v.  Boothby 257 

Woodruff  Co.  v.  Diehl 62 

Woocltliorpe  v.  Lawes 59 

Woodward  v.  Semans 362 

Woolensack  v.  Briggs 367 

Wooster  v.  Tarr 69 

Worcester  County,  In  re 39 

Word   v.   Morgan 418 

Workman  v.  'Wright 5 

Worsley  v.  Wood 110 

Worthington  v.  Cowles 10 

Wright  v.  Burroughs 200 

v.  Herrick 267 

v.  Jones 39d 

v.  Tatham 223 

v.  Tetlow 367 

Wulff  v.  Jay 418 

Wurts  v.  Hoagland 82 

Wyck  v.  East  India  Co 467 

Wyley  v.  Bull 357 

X. 

Xenos  v.  Wickham 314 

Y. 

Yale  v.  Dederer 199 

Yale  v.  Eames 264 

Yeap  Cheak  Neo  v.  Ong  Cheng 

Neo 344 

Yetzger  v.  Thomas 305 

Yick  Wo  v.  Hopkins 79,  83 

Yocum  v.  Smith 48 

Yonkers,  etc.,  Ins.  Co.  v.  Hoffman 

Ins.  Co 243 

York  v.  Greenough 69 

York  Mfg.  Co.  v.  Cassel 30 

Yorkshire  Ry.  Wagon  Co.  v.  Ma- 

cluro 413 

Younj?  v.  Cooper 284,  28S 

v.  Grote 48 

v.  Hichens 294 

Youngs  v.  Lee 59 

Yukon  Woolen  Co.,  In  re 30 

Z. 

Zabriskie  v.  R.  R.  Co 133 

Zaleski  v.  Clark 112 

Zimpleman  v.  Keatjng 7 

Zinn   v.   Steamboat   Co 67 

Zoebisch   v.   Van   Minden 100 

Zouch  v.  Parsons 206 

Zuck  v.  McClure 117 

Zwisler  v.   Storts..                           .  364 


QUESTIONS  AND  ANSWERS 

FOK 

BAR  EXAMINATION  REVIEW. 


I.     WHAT  ACTS  CANNOT  BE  DONE  BY  AN  AGENT. 

1.  A.  is  made  a  trustee  for  the  management  of  certain  prop- 
erty.    Can  he  delegate  the  performance  of  any  of  his  trust  duties 
to  an  agent? 

The  rule  is  absolute  that  a  trustee  has  no  power  of  delegation, 
i.  e.,  he  cannot  delegate  the  performance  of  any  act  which  requires 
his  personal  discretion.  It  is  his  personal  qualification  that  has 
caused  his  selection  as  trustee.  Merrill  v.  Trust  Co.,  24  Hun  (N.  Y.), 
297,  299. 

Where  the  acts  are  merely  clerical,  however,  and  require  no  dis- 
cretion, delegation  by  a  trustee  is  possible. 

2.  A.  is  required  in  an  action  to  make  a  certain  affidavit. 
Can  it  be  sworn  to  by  B.,  A.'s  agent? 

If  A.  is  a  corporation  the  affidavit  must,  of  necessity,  be  made 
by  an  agent,  but  if  A.  is  an  individual,  the  text-books  usually  state 
that  he  must  swear  to  the  affidavit  personally.  The  authorities 
quoted  are  not  numerous,  however. 

Pool  v.  Webster,  3  Met.  (Ky.)  278,  sustains  this  view,  and 
Flake  v.  Day,  22  Ala.  132,  is  contra.  The  question  should  be 
one  of  substance.  If  personal  credit  is  required,  then  it  is  cer- 
tainly correct  to  hold  that  an  agent  cannot  act.  If,  however,  the 
affidavit  is  one  of  mere  form,  then  the  agent  should  be  competent. 
In  almost  every  State  there  is  a  statute  allowing  an  agent  to  take 
an  oath  for  his  principal. 

II.    WHO  MAY  BE  A  PRINCIPAL. 

3.  Can  an  insane  person,  a  minor  or  a  married  woman  be 
a  principal? 

An  insane  person  cannot,  as  he  is  unable  to  act  for  himself,  and 
so  cannot  appoint  an  agent.  Stead  v.  Thornton,  3  B.  &  Adol.  357, 
notett  -, 


2  QUESTIONS  AND  ANSWERS. 

As  to  an  infant,  the  law  is  settled  by  the  weight  of  authority 
that  he  cannot  be  a  principal,  and  that  the  appointment  of  an 
agent  by  him  is  void.  Mechem  on  Agency,  §§  51-55.  The  sound- 
ness of  this  view,  however,  is  well  questioned  by  the  same  author. 
Id.,  §  55.  Certainly,  the  infant  would  be  amply  protected  if  the 
appointment  were  simply  voidable,  as  in  the  case  of  contracts. 
Towle  v.  Dresser,  73  Me.  252,  256,  and  Whitney  v.  Dutch,  14  Mass. 
457,  support  this  -view  and  seem  sound. 

In  so  far  as  a  married  woman  has  statutory  capacity  to  act,  sh«« 
can  act  through  an  agent,  even  if  the  latter  be  her  husband.  Bo- 
dine  v.  Killeen,  53  N.  Y.  93. 

III.     WHO  MAY  BE  AN  AGENT. 

4.  A.  authorized  B.,  his  slave,  to  act  for  him.     Is  A.  bound 
by  such  action?    Suppose  B.  is  an  infant?  a  married  woman? 

A  slave  may  be  an  agent.  Cjiastain  v.  Bowman,  1  Hill  (S.  C.), 
175. 

Both  an  infant  and  a  married  woman  may  also  be  agents. 
Mechem  on  Agency,  §§  59-61.  These  illustrations  show  that  the 
ability  to  contract  in  one's  own  right  is  not  necessary  for  a  capacity 
to  act  as  an  agent. 

IV.  CONFERRING  AUTHORITY  TO  EXECUTE  INSTRUMENTS  UNDER 

SEAL.  . 

5.  A.  draws  a  deed  and  gives  his  agent  parol    authority    to 
fill  up  certain  blanks.      Would  the  deed  be  valid? 

If  the  blanks  were  not  material,  the  parol  authority  would  be 
sufficient.  Vose  v.  Dolan,  108  Mass.  155.  But  if  the  blanks  were 
material,  parol  authority  to  fill  them  up  would  not  be  sufficient 
in  jurisdictions  where  the  seal  has  not  been  abolished  by  statute. 
Where  such  statutes  have  not  been  passed,  the  old  rule  still  obtains 
that  an  authority  to  execute  an  instrument  under  seal  must  also 
be  under  seal.  Mechem  on  Agency,  §  93.  Many  of  the  western 
States,  however,  have  abolished  seals,  and  in  such  jurisdictions  the 
seal  will  be  disregarded  and  the  instrument  treated  as  a  simple 
contract  for  which  parol  authority  is  sufficient.  Id.,  §  95. 

V.  CONFERRING  AUTHORITY  GENERALLY. —  ACTUAL  AND  INCI- 

DENTAL AUTHORITY. 

6.  A.,  a  tailor,  hired  B.  to  carry  on  a  branch  store.     B.,  with- 
out authority,  paid  his  doctor's  bill  in  clothes.      Could  4-  re" 
cover  from  the  doctor? 

Yes.  B.  had  authority  to  do  anything  which  would  be  usual 
in  the  conduct  of  the  business,  but  he  had  no  authority  to  bind  A.. 
when  using  A.'s  goods  for  private  purposes.  Such  an  authority 
could  in  no  way  be  implied  from  that  actually  given.  Stewart  v. 
Woodward,  50  Vt.  78. 


AGENCY.  3 

7.  A.  appoints  B.  his  general  agent  to  sell  his  horses,  telling 
him  specially  not  to  warrant  the  soundness  of  one  particular _ 
horse.     B.   does  warrant  that  horse.     Could  A.   be   held  for 
breach  of  warranty? 

Yes.  B.  had  the  incidental  authority  to  warrant  the  horse,  i.-e., 
such  authority  was  reasonably  to  be  implied  from  his  general 
authority  to  sell,  and  the  purchaser  could  rely  upon  B.'s  apparent 
authority  unless  the  limitation  was  actually  known.  A  principal 
cannot  free  himself  from  liability  by  secret  instructions  to  his 
agent.  Howard  v.  Sheward,  L.  R.  2  C.  P.  148,  151. 

8.  A-'s  agent,  a  ship  captain,  signed  a  bill  of  lading  when, 
in  reality,  the  goods  had  never  been  received.    Would  A.  be  bound 
by  h  is  agent's  acts,  if  sued  by  an  innocent  third  party  ? 

In  the  United  States,  by  the  best  authority,  he  would  be. 
"\Yhere  a  principal  gives  his  agent  aiithority  to  do  an  act  upon  the 
existence  of  some  extrinsic  fact,  peculiarly  within  the  knowledge 
of  the  agent  and  of  the  existence  of  which  the  act  of  execution 
is  itself  a  representation,  the  principal  is  then  estopped  to  deny 
the  truth  of  his  agent's  representation  to  one  who  has  dealt  with 
the  agent,  in  good  faith,  in  reliance  upon  the  representations. 
Bank  of  Batavia  v.  R.  R.  Co., -106  N.  Y.  195;  New  York,  etc., 
R.  R.  Co.  v.  Schuyler,  34  id.  30,  53;  Sioux  City,  etc.,  R.  R.  Co.  v. 
P.ank,  10  Neb.  556. 

In  England,  however,  the  law  is  settled  contra,  and  A.  would 
not  be  bound.  Grant  v.  Norway,  10  Com.  Bench,  665;  Coventry 
v.  Railroad  Co.,  11  Q.  B.  Div.  776. 

The  powers  of  an  agent  in  general  may  be  shown  by  the  following 
diagram: 


fl.  SPECIFIED. 

[Conferred  explicitly.] 


POWERS     OF 


fNOT  FORBIDDEN. 


AGENT  ARE  -j  2.  INCIDENTAL 

[Customary  or  reasonably  necessary.]      4  FORBIDDEN. 

a. .  Limitation  known. 
I    b.  Limitation  unknown . 
[3.  FOUNDED  IN  ESTOPPEL. 
.[As  to  third  persons.] 

As  has  been  shown  by  the  previous  answers,  incidental  authority  is 
that  which  a  man  would  reasonably  infer  to  be  implied  by  the  giving 
of  the  powers  which  are  conferred  explicitly.  Whether  incidental  au- 
thority exists  in  a  certain  case  is,  therefore,  a  question  of  fact  for  the 
jury.  Brady  v.  Todd,  9  C.  B.  (N.  S.)  592.  Incidental  authority  is  as 
actual  as  any  other,  and  as  has  also  been  shown,  any  limitation  of  it 
must  be  known  to  the  third  party  in  order  to  affect  his  rights. 

VI.     SUBSTANTIAL  PERFORMANCE  OF  AUTHORITY. 

9.  A.  gave  B.,  his  agent,  authority  'to  sign  a  note  for  him, 
payable  in  six  months.  B.  signed  a  note  payable  in  sixty  days. 
Is  A.  liable? 


4  QUESTIONS  AND  ANSWERS. 

No.  The  agent  had  no  authority  of  any  kind  to  sign  a  note 
for  sixty  days.  Batty  v.  Carswell,  2  Johns.  (N.  Y.)  48.  A  special 
power  must  be  followed  strictly. 

10.  A.  ordered  fifty  cases  of  goods  through  B.,  his  agent.     B. 
shipped  forty-nine,  being  all  that  he  could  get.     Can  A.  refuse 
the  goods?     Suppose  B.  had  shipped  one  hundred  cases? 

A.  could  not  refuse  the  forty-nine  cases.  Such  a  shipment  was 
a  substantial  performance  of  B.'s  authority.  He  would  have  an  in- 
cidental authority  to  deviate  from  the  exact  orders  to  a  reasonable 
extent.  Lathrop  v.  Harlow,  23  Mo.  209. 

When  an  agent  exceeds  his  directions  two  questions  arise:  (1)  had  he, 
by  incidental  authority,  power  to  do  the  whole,  and  (2)  is  the  contract 
severable.  If  the  agent  had  no  power  to  do  the  whole,  as  he  would 
not  have  to  buy  one  hundred  cases,  A.  could  not  be  held  at  all,  unless 
the  purchase  of  one  hundred  cases  could  be  severed  into  two  or  more 
contracts,  one  of  which  substantially  complied  with  the  order  for  fifty 
cases  as  given.  If  that  could  be  done,  A.  would  be  bound  as  to  that 
part. 

VII.     SUBSTITUTION. —  DELEGATING  AUTHORITY. 

11.  A.,  an  executor,  employs  B.  to  act  in  his  place.     What,  if 
any,  would  be  A/s  liability  for  B/s  negligence  or  misconduct? 

A.  would  be  absolutely  liable.  Where  personal  trust  is  placed 
in  an  agent,  such  as  an  executor,  he  has  no  right  to  delegate  his 
power,  nor  to  substitute  another  in  his  stead.  Mechem  on  Agency, 
§  189. 

12.  Under  what  circumstances  may  an  agent  delegate  his 
authority,  and  what  are  his  liabilities  after  such  delegation? 

An  agent  may  delegate  his  authority  (1)  when  the  acts  to  be 
performed  are  mechanical  or  ministerial  only;  (2)  where  necessity 
requires  it,  as  the  employment  of  an  attorney,  if  an  agent  is 
directed  to  bring,  suit;  (3)  where  such  delegation  is  customary; 
(4)  where  it  was  originally  contemplated.  Mechem  on  Agency, 
§§  192-196. 

After  delegating  his  authority,  the  agent  is  in  no  way  liable  for  the 
misdeeds  of  the  sub-agent,  providing  he  has  used  due  care  in  his  selec- 
tion. In  that  case  the  sub-agent  is  directly  responsible  to  the  principal. 
If  due  care  has  not  been  used,  however,  the  agent  will  be  liable  for 
tne  injury  arising  from  the  negligent  delegation.  Mechem  on  Agency, 
I  197. 

13.  The  A.  bank  is  given  a  note  payable  in  a  distant  city,  and 
sends  it  to  the  B.  bank  for  collection.     The  B.  bank  negligently 
•fails  to  colled.     Is  the  A.  bank  liable? 

In  most  jurisdictions,  it  is  held  that  this  is  a  case  where  delega- 
tiou  is  necessary,  and,  therefore,  that  the  A.  bank  would  not  be 


AGENCY.  5 

liable,  if  it  had  exercised  due  care  in  selecting  the  B.  bank.  The 
courts  are  not  unanimous,  however,  and  it  is  held  in  New  York, 
Michigan,  Ohio,  New  Jersey,  Montana,  Indiana,  the  United  States 
Supreme  Court  and  in  England  that  the  A.  bank  would  be  liable. 
In  these  jurisdictions  the  A.  bank  is  considered  as  an  independent 
contractor,  which  selects  its  own  agents  and  is  liable  for  their 
default.  Mechem  on  Agency,  §  514.  See  Trusts,  Ques.  6. 

VIII.    EATEFICATION. 

a.   Generally. 

14.  An  agent  with  authority  to  draw  checks,  drew  one  for  an 
unauthorized  purpose.     The  principal  ratified  the  agent's  act, 
and  then  stopped  payment  of  the  check  on  the  ground  that  there 
was  no  consideration  for  his  ratification.     Would  he  be  liable? 

Yes.  Eatification  needs  no  consideration.  It  is  not  a  contract, 
but  an  adoption  of  an  act  which  would  have  been  good  if  there 
had  been  authority.  Commercial  Bank  v.  Warren,  15  N.  Y.  577. 

15.  The  Statute  of  Frauds  requires  that  a  contract  for  the 
sale  of  goods  shall  be  signed  by  a  duly  authorized  agent  of  the 
party  to  be  charged.     If  an  agent  makes  and  signs  an  unau- 
thorized contract  and  his  principal  then  ratifies,  has  the  statute 
been  satisfied? 

Yes.  For  the  purposes  of  the  statute  the  ratification  of  the 
principal  relates  back  to  the  time  of  the  contract,  and  the  memo- 
randum is  good  ab  initio.  Maclean  v.  Dunn,  4  Bing.  722. 

16.  B.'s  agent  X.,  acted  without  authority,  and  C.,  wishing 
to  profit  by  the  contract  made  by  X.,  ratified  it.     Who  would  be 
liable  on  the  contract,  B.  or  C.? 

Neither  would  be  liable;  B.  because  he  never  ratified,  and  C. 
because  he  could  not  ratify.  Eatification  is  only  possible  by  the 
person  from  whom  the  agent  expected  to  get  his  autlwrity.  "Wil- 
son v.  Tumman,  6  Man.  &  G.  236. 

17.  A.  forges  B.'s  name.      Can  B.  ratify  the  forgery?- 

The  authorities  are  divided.  Maine,  Massachusetts,  Connecti- 
cut, Illinois,  Missouri  and  New  York  hold  that  a  forgery  can  be 
ratified.  See  Greenfield  Bank  v.  Crafts,  86  Mass.  447.  England, 
Pennsylvania,  Ohio,  New  Hampshire,  Maryland  and  Indiana  say 
that  a  forgery  cannot  be  ratified.  See  Brook  v.  Hook,  L.  E.  6 
Exch.  89;  Workman  v.  Wright,  33  Ohio  St.  405.  As  a  strict  ques- 
tion of  principle,  the  latter  view  seems  better.  As  said  in  Brook 
v.  Hook  (supra),  ratification  applies  only  when  the  party  pretends 
to  act  under  authority,  and  a  forger  never  represents  himself  as  an 


6  QUESTIONS  AND  -ANSWERS. 

agent,  nor  intends  to  act  as  one.     The  whole  basis  of  ratification  is 
the  idea  that  there  is  a  principal  who  can  ratify. 

18.  B.  acts  for  a  corporation  about  to  be  formed,  and  after 
the  incorporation  the  company  ratifies  B.'s  act.     Is  the  ratifica- 
tion good?  • 

No.  Eatification  relates  back  to  the  time  of  the  original  act, 
and  there  must  be  a  principal  who  could  act  at  that  time.  The 
existence  of  the  principal  at  the  time  of  the  ratification  merely  is 
not  enough.  Kelner  v.  Baxter,  L.  E.  2  C.  P.  174. 

19.  A.  makes  an  unauthorized  contract  in  the  name  of  his 
principal,  who  dies  before  ratifying.     Can  the  administrator 
ratify  ? 

No.  There  can  be  no  ratification  after  the  death  of  the  party 
for  whom  the  act  was  done.  Whiting  v.  Ins.  Co.,  129  Mass.  240. 

20.  A.,  an  agent,  made  an  unauthorized  purchase  of  goods 
from  B.    C.  attached  these  goods  as  the  property  of  B.,  and  then 
A/s  principal  ratified  his  purchase?     Who  has  a  right  to  the 
goods ? 

They  belong  to  C.  Eatification  does  not  relate  back  so  as  to 
defeat  the  rights  of  intervening  parties.  Pollock  v.  Cohen,  32 
Ohio  St.  514. 

21.  Can  a  principal  revoke  a  ratification? 

No.  "When  a  principal  once  makes  an  election,  that  is  final. 
Beall  v.  January,  62  Mo.  435,  439;  Jones  v.  Atkinson,  68  Ala.  167. 

b.    Time  of  Ratification. 

22.  A.  insures  B.'s  ship  without  authority.     B.  ratifies  after 
he  learns  of  the  loss  of  the  ship.     Can  he  hold  fhe  insurance 
company  ? 

Yes.  Ordinarily,  a  principal  must  have  the  power  to  make  the 
contract  himself  at  the  time  of  ratification,  but  in  cases  of  marine 
insurance,  the  exception  is  established  that  ratification  after  loss 
is  good.  Finney  v.  Ins.  Co.,  46  Mass.  192.  See  also  Williams  v. 
In?.  Co..  L.  E.  1  C.  P.  I)iv.  757,  764.  In  Canada  this  exception  is 
carried  into  cases  of  fire  insurance.  Ogden  v.  Ins.  Co.,  3  U.  C.  C.  P. 
497,  511. 

23.  An  agent  made  an  unauthorized  contract  with  a  third 
party,  who  then  rescinded  before  the  principal  had  had  an  op- 
portunity to  ratify.     The  principal  did  ratify  as  soon  as  he 
learned  of  the  contract.     Could  he  hold  the  third  party? 


AGENCY.  7 

Xo.  Before  ratification  the  third  party  has  a  perfect  right  to 
rescind,  and  after  rescission  there  is  nothing  left  for  the  principal 
to  ratify.  Walter  v.  James,  L.  K.  6  Ex.  124. 

24.  A.,   an   agent,    makes   an   unauthorized   contract,  with   B. 
The  principal  ratifies  A.'s  act,  but  B.  then  refuses  to  abide  by  the 
contract.    Is  he  bound? 

By  the  authorities,  such  a  contract  is  held  not  to  be  binding. 
Dodge  v.  Hopkins,  14  Wis.  630,  636;  Mechem  on  Agency,  §  179. 
The  argument  is  that,  as  the  principal  is  not  bound  until  ratifica- 
tion; the  third  party  cannot  be  bound  until  he  assents  to  the 
ratification.  This  reasoning,  however,  overlooks  the  fact  that 
the  third  party  did  assent  to  the  contract  originally,  and,  on 
principle,  his  assent  should  continue,  as  it  would  in  the  case  of 
an  offer,  until  it  is  rescinded.  According  to  the  authorities  in  the 
above  situation,  ratification  is  an  impossibility.  There  must  be 
an  entirely  new  contract. 

c.    Attempt  to  Ratify  in  Part. 

25.  A.'s  agent  contracted  to   sell  B.   negotiable  paper  falsely 
representing  that  it  was  good.     A^bues  B.  for  the  contract  price 
and  argues  that  his  agent's  fraud  is  no  defense,  as  it  was  not 
authorized?    Is  the  argument  good? 

Xo.  An  agent's  acts  cannot  be  ratified  in  part  and  repudiated 
in  part.  '  By  suing.  A.  ratified  all  his  agent's  acts,  including  the 
fraud,  whether  authorized  or  not.  Elwell  v.  Chamberlin,  31  N.  Y. 
611,  619. 

d.    Oral  Ratification  of  Instrument  under  Seal. 

26.  An    agent,    without    authority,    conveyed    his    principal's 
land  by  deed.     The  principal  ratified  the  agent's  sale  by  parol, 
and  now  seeks  to  rescind?    Can  he  do  so? 

Yes.  When  an  instrument  under  seal  is  executed  by  an  agent, 
his  authority  must  be  given  by  an  instrument  also  under  seal,  and 
parol  ratification  is  no  better  than  parol  authority.  Stetson  v. 
Patten  2  Me.  358;  Zimpelman  v.  Keating,  72  Tex.  318.  This 
rule  has  been  generally  relaxed,  however,  in  partnership  cases, 
allowing  parol  ratification  by  one  partner  of  an  instrument  sealed 
by  a  copartner.  Peirce  v.  Weber,  47  111.  41,  45.  And  in  Massa- 
chusetts it  is  held  that  the  sealing  of  any  instrument  may  be  ratified 
by  parol.  Mclntyre  v.  Park,  77  Mass.  102,  106.  This  is  very  ex- 
treme, however,  and  is  nowhere  followed. 


8  QUESTIONS  AND  ANSWEES. 

e.    Batification  without  Full  Knowledge. 

27.  A.'s  agent  makes  a  contract  which  A.  ratifies  before  he 
knows  all  of  the  facts  of  the  case.     On  learning  them,  he  re- 
pudiates.    Would  his  previous  ratification  bind  him? 

No.  Ratification,  to  be  binding,  must  be  with  full  knowledge 
of  all  the  material  facts.  Coombs  v.  Scott,  94  Mass.  493,  497; 
Walker  v.  Walker,  5  Heisk.  (Penn.)  425,  429. 

f .    As  to  What  Constitutes  Ratification. 

28.  A.  ordered  his  agent  to  buy  goods  in  Boston.     The  agent 
bought  in  New  York  and  notified  A..,  who  said  nothing  for  sev- 
eral days,  until  he  was  informed  that  the  goods  had  been  lost. 
He  then  repudiated  the  agent's  purchase.     Could  he  do  so? 

No.  Silence,  though  not  ratification,  may  be  such  strong  evi- 
dence of  it  that  the  inference  is  necessary,  as  it  is  in  this  case.  A 
principal  cannot  hold  his  peace  to  bide  the  event.  Ratification 
is  a  question  of  fact,  and  a  man  who  will  not  speak  must  let  a 
jury  construe  his  silence.  Foster  v.  Rockwell,  104  Mass.  167,  172. 
He  cannot  lie  by  and  seize  the  benefit  of  a  contract  if  profitable, 
or  renounce  it  if  otherwise,  at  his  election.  Phila.,  etc.,  R.  R. 
Co.  v.  Cowell,  28  Penn.  St.  jg9. 

Even  when  the  quasi  age^p  is  a  mere  meddler,  the  silence  of 
the  principal  is  admissible  evidence  of  ratification,  though  not 
very  weighty.  Heyn  v.  O'Hagen,  60  Mich.  150,  157.  Contrary 
to  this,  however,  is  Ward  v.  Williams,  26  111.  447. 

29.  An  agent  made  an  unauthorized  contract.     The  prin- 
cipal told  a  party  not  interested  in  the  contract  that  he  had 
ratified  it.     Would  that  alone  be  a  good  ratification? 

Yes.  Ratification  is  simply  a  case  of  election,  and  all  that  you 
need  to  prove  is  that  the  election  was  made,  as  shown  by  some  act 
to  anyone.  Upton  v.  Stunbridge  Mills  Co.,  Ill  Mass.  446;  Bishop 
on  Contracts,  §§  777-783,  803,  808,  844. 

30.  A.'s  friend  (not  an  agent)  sells  and  delivers  A.'s  goods 
to  B.  without  authority,  and  while  doing  so,  breaks  B.'s  window. 
A.  knowing  this,  sues  for  the  value  of  the  goods.    Has  he  ratified 
the  tort  as  well  as  the  contract? 

Yes.  A.  has  ratified  the  relation  of  principal  and  agent  and  the 
liability  for  the  tort  is  incidental  to  the  relation.  Dempsey  v. 
Chambers,  154  Mass.  330. 

31.  An  agent,  ivithout  authority,  brings  suit  in  his  princi- 
pal's name.   The  principal  ratifies  after  service  of  the  pleadings. 
Is  the  suit  well  begun? 


AGENCY.  9 

Yes.  "it  is  held  that  the  ratification  relates  back  and  that  the 
suit  is  good  ab  initio.  Ancona  v.  Marks,  7  Hurl.  &  N.  686.  This 
view  is  generally  followed  in  the  United  States. 

But  see  Wittenbrock  v.  Bellmer,  57  Cal.  12.  In  that  case  the 
plaintiff  sued  upon  a  note  which  was  assigned  to  him  by  an  agent 
without  authority,  and  it  was  held  that  a  ratification  after  the  suit 
was  begun  was  unavailing. 

IX.    MODE  OF  EXECUTING  AUTHORITY. —  FORM  OF  SIGNATURE. 

a.     Contracts  under  Seal. 

32.  Action  against  E.,  C.  and  D.  on  bond  signed  "B.,  C.  and 
D.r  trustees  of  X.  society"  and  sealed  by  them  respectively. 
Are  B.f  C.  and  D.  liable  personally? 

Yes.  In  spite  of  the  evident  intention  of  the  parties,  the  seals 
are  not  those  of  the  society,  and  the  addition  of  the  words  "  trus- 
tees/' etc.,  will  not  free  the  parties  from  personal  liability.  The 
words  are  treated  by  the  court  as  merely  descriptive.  Taft  v. 
Brewster,  9  Johns.  (N.  Y.)  334.  To  bind  the  principal  the  sealed 
instrument  must  purport  to  be  signed  and  sealed  by  the  principal. 
The  proper  wav  to  have  signed  the  above  bond  would  have  been, 
"The  X  society  (seal)  B.,  C.  and  D.,  trustees." 

In  the  case  of  public  officers,  however,  the  town  or  city  is  charged 
where  an  intention  to  do  so  is  shown,  though  the  signature  and  seal  are 
those  of  the  officer.  Hodgson  v.  Dexter,  1  Cranch,  345;  Knight  v.  Clark, 
48  N.  J.  Law,  22.  But  see  Brown  v.  Bradley,  156  Mass.  12,  contra,  hold- 
ing that  there  is  no  distinction  between  public  and  private  agents. 

b.    Negotiable  Paper. 

33.  A  note,  "Thirty  days  from  date  I  promise  to  pay  $1,000," 
signed  "  J.  8.,  agent  of  A.  B"     Who  is  liable  on 'the  note? 
Suppose  it  had  been  signed  "J.  S.,  agent  for  A.  B." 

If  the  signature  was  "J.  S.,  agent  of  A.  B.,"  the  liability 
would  rest  on  J.  S.  alone.  "Agent  of  A.  B."  is  treated  only  as 
description  by  the  courts.  Tucker  Mfg.  Co.  v.  Fairbanks,  98  Mass. 
101,  104.  If,  however,  the  signature  was  "  J.  S.,  agent  for  A.  B.," 
A.  B.  would  be  held  liable.  The  two  expressions  are  not  held 
to  be  identical.  Mechem  on  Agency,  §  432.  In  Colorado,  even 
"  agent  for  "  is  not  held  to  bind  the  principal. 

The  general  rule  is  well  stated  in  Tucker  Mfg.  Co.  v.  Fairbanks 
(st/pro),  "  In  order  to  exempt  an  agent  from  liability  upon  an  instru- 
ment executed  by  him,  within  the  scope  of  his  agency,  he  must  not 
only  name  his  principal,  but  he  must  express  by  some  form  of  words 
that  the  writing  is  the  act  of  the  principal,  though  done  by  the  hand 
of  the  agent.  If  he  expresses  this,  the  principal  is  bound,  and  the 


10  QUESTIONS  AND  ANSWEES. 

agent  is  not.  But  a  mere  description  of  the  general  relation"  or  office 
which  the  person  signing  the  paper  holds  to  another  person  or  corpo- 
ration, without  indicating  that  the  particular  signature  is  made  in  the 
execution  of  the  office  and  agency,  is  not  sufficient  to  charge  the  prin- 
cipal, or  to  exempt  the  agent  from  personal  liability." 

34.  A  check  is  drawn  "Pay  to  order  of  A.  B.,  cashier  "  (of  a 
bank),  and  indorsed  by  him.  Is  A.  B.  liable  personally  as  in- 
dorser f 

No.  Where  negotiable  paper  is  made  payable  to  an  agent  of 
a  corporation,  as  such,  it  is  treated  as  payable  to  the  principal, 
and  an  indorsement,  "A.  B.,  cashier,"  is  held  to  be  an  indorse- 
ment by  the  principal.  If  the  check  had  been  payable  to  A.  B. 
individually,  he  would  have  been  liable  on  the  indorsement.  Bank 
v.  Bank,  29  N.  Y.  619;  Mechem  on  Agency,  §  439. 

c.    Simple,  Written  and  Oral,  Contracts. 

.35.  A  contract  recited  that  "H.,  8.  and  N.,  as  committee  of 
the  town  of  W./'  agreed  to  pay  for  certain  work.  Could  they  be 
held  personally  liable  for  the  payment? 

Yes.  The  test  is  the  intention  of  the  parties,  as  shown  by  the 
contract,  but  a  mere  description  as  "  agents  "  or  "  committee  "  is 
not  enough  to  free  the  agents  from  personal  liability.  Simonds  v. 
Heard,  40  Mass.  120;  Brown  v.  Bradley,  156  id.  28. 

The  same  rule  applies  to  oral  contracts.  Worthington  v.  Cowles, 
112 'Mass.  30. 

X.     LIABILITY  OF  A  PRINCIPAL  FOE  THE  TORTS  OF  His  AGENT. 

a.    When  the  Relation  of  Principal  and  Ag«nt  Exists. 

36.  A.  gave  certain  work  to  an  independent  contractor  and 
assigned  B.,  one  of  his  ownemployees,  to  work  for  the  contractor. 
C.,  another  one  of  A.'s  employees,  was  injured  by  B.     Could 
C.  recover  from  any  one  ? 

Yes,  from  the  contractor.  When  B.  began  working  under  the 
orders  of  the  contractor,  he  was  the  contractor's  servant  and  no 
longer  the  fellow-servant  of  C.  In  cases  of  tort  the  man  is  liable 
as  principal,  who  has  the  right  of  control  over  the  servant  doing 
the  injury.  Eourke  v.  Colliery  Co.,  L.  R.  2  C.  P.  D.  205;  Johnson 
v.  Boston,  118  Mass.  114. 

37.  A.  was  injured  by  B/s  cart.     B.'s  servant  was  not  driv- 
ing'at  the  time,  but  was  on  the  cart  and  had  allowed  a  friend  to 
drive.     Is  B.  liable  for  the  injury? 

Yes.  In  such  cases  the  friend  is  looked  upon  as  the  instru- 
ment through  which  the  servant  acted,  and  the  master  is  held. 
Booth  v.  Mister,  7  Car.  &  P.  66;  Althorf  v.  Wolfe,  22  N.  Y.  355,  360. 


AGENCY.  11 

38.  A  warehouse  caught  fire  and  B.'s  goods  were  burned. 
Several  servants  of  the  ivarehousemen  not  connected  -with  the 
warehouse  were  about  the  premises  and  could  have  put  the  fire 
out  easily  if  they  had  acted  promptly.     Is  the  warehouseman 

liable  for  the  loss/ 

No.  The  servants  committed  no  tort  by  refraining  from 
putting  out  the  fire.  They  were  not  agents  for  that  purpose; 
therefore,  the  defendants  are  not  chargeable  with  their  neglect.  Al- 
drich  v.  E.  E.  Co.,  100  Mass.  31.  . 

b.    What  Acts  are  within  the  Scope  of  the  Agency. 

39.  A.'s  servant,  a  truckman,  after  finishing  A.'s  business, 
deviates  from  the  way  home  for  his  own  personal  purposes,  and 
on  the  road  runs  over  B.     Is  A.  liable  for  the  injury? 

No.  To  hold  the  master,  the  servant  must  have  been  doing 
the  master's  business  at  the  time.  Here  the  servant  was  doing 
his  own  business.  It  is  a  question  of  degree,  however,  how  much 
of  a  deviation  from  the  proper  road  will  put  a  servant  beyond  the 
scope  of  his  employment.  A  very  slight  deviation  would  not. 
Story  v.  Ashton,  10  Best  &  Smith,  337.  Whether  or  not  a  servant 
is  acting  within  the  scope  of  his  employment  is  a  simple  question 
of  fact. 

40.  The  driver  of  A.'s  delivery  wagon  drives  upon  a  sidewalk 
^partly  for  the  purpose  of  delivering  goods  and  partly  to  injure 
the  walk.     Is  A.  liable  for  the  injury? 

Yes.  Where  the  servant  has  a  mixture  of  motives,  if  one  of 
them  is  to  do  the  master's  business,  the  master  is  liable,  unless  the 
means  adopted  is  beyond  reason.  Howe  v.  Newmarch,  94  Mass.  49. 

Even  when  the  special  act  done  is  actually  forbidden,  if  the  servant 
Is  doing  the  master's  business,  the  master  is  liable  for  any  injury.  As 
•where  an  engineer  in  running  his  locomotive  disregards  orders.  R. 
R.  Co.  v.  Derby,  14  How.  468,  487. 

There  are  three  phases  of  the  acts  of  agents: 

I.  Where  the  servant  intends  to  act  for  his  principal. 

II.  Where  there  is  a  mixture  of  motives,  one  to  act  for  the  master 
and  another  to  act  for  himself.    The  independent  motive  may  be  benev- 
olent as  well  as  malicious. 

III.  Where  there  is  no  intention  of  acting  in  the  course  of  the  mas- 
ter's service. 

Each  of  these  phases  may  have  three  subdivisions: 

1.  Where  the  act  does  facilitate  the  master's  business, 

2.  Where  it  might  have  been  supposed  to  be  in  the  course  of  the 
-"Ynployment  if  it  had  not  been  prohibited. 

3.  Where  the  act  could  not  be  supposed  to  be  in  the  course  of  em- 
ploynlent,  whether  prohibited  or  not 


12  QUESTIONS  AND  ANSWERS. 

The  master  is  liable  for  his  agent's  torts,  in  I,  1  and  2,  II,  1  and  2,  and 
not  liable  in  I,  3;  II,  3;  and  III,  1,  2  and  3.  Where  there  is  no  intention 
of  acting  in  the  master's  business  he  cannot  be  held,  even  if  the  act 
aid  benefit  him. 

41.  A.'s  agent,  without  authority,  but  in  the  course  of  his 
employment  as  bookkeeper,  makes  false  representations  by  which 
B.  is  injured.     Can  A.  be  sued  in  tort  for  deceit? 

Yes.  The  master  should  be  as  liable  for  the  deceit  of  his  ser- 
vant as  for  any  other  tort,  and  that  is  the  general  rule.  White  v. 
Sawyer,  82  Mass.  586;  Barwick  v.  English,  etc.,  Bank,  L.  R.  2  Ex. 
259;  Bennett  v.  Judson,  21  N.  Y.  238.  There  has  been  a  good 
deal  of  conflict,  however,  about  holding  a  master  for  deceit,  and 
the  law  in  England  is  still  in  doubt.  Udell  v.  Atherton,  7  Hurl.  & 
N.  172.  And  in  New  Jersey  the  principal  is  held  not  to  be  liable 
for  the  deceit  of  his  agent.  Decker  v.  Fredericks,  47  N.  J.  Law,  469. 
Deceit  does  differ  from  other  torts  in  that  it  must  be  relied  upon 
by  the  third  party  in  order  to  give  a  right  of  action.  Fraudulent 
representations  are  often,  of  necessity,  so  involved  with  the  master's- 
business  as  to  make  him  liable,  though  the  agent  was  serving  hia 
own  ends. 

c.    The  Independent-Contractor  Doctrine. 

42.  What  is  the  difference  between  an  independent  contractor 
and  an  agent? 

The  difference  is  in  the  amount  of  control  which  the  principal 
possesses.  .In  the  case  of  an  agent,  the  principal  has  the  right  to 
direct  every  individual  step.  A  contractor,  however,  acts  in  the 
"  course  of  an  independent  occupation,  representing  the  will  of  the 
employer  only  as  to  result  of  the  work,  and  not  as  to  means  by 
which  it  was  accomplished."  Hexamer  v.  Webb,  101  N.  Y.  377,. 
383;  R.  R.  Co.  v.  Banning,  15  Wall.  649,  657;  Lawrence  v.  Ship- 
man,  39  Conn.  586. 

43.  Under  what  circumstances,  if  any,  is  a  principal  liable 
for  the  torts  of  a  contractor? 

(1)  If  X.  employs  Y.,  a  contractor,  and  Z.  is  damaged  by  the 
result  which  X.  sought,  X.  is  liable. 

(2)  If  X.  employs  Y.  to  produce  a  given  result  and  the  only 
means  of  producing  it  are  necessarily  injurious,  X.  is  then  liable. 

(3)  If  X.  is  under  a  duty  to  Z.  and  employs  Y.  to  perform  it, 
he  is  liable  for  Y.'s  failure. 

(4)  In  all  other  cases  the  principal  is  not  liable  for  the  torts 
of  a  contractor.     Mechem  on  Agency,  §§  747,  748;  Lawrence  v. 
Shipman,  39  Conn.  586,  589;  Storrs  v'  City  of  Utica,  17  N.  Y.  104; 
Sturgie  Y.  Theological,  etc.,  Society,  130  Mass.  414. 


AGEXCT.  13 

XI.  As  TO  CRIMINAL  LIABILITY  OF  A  PRINCIPAL  FOR  ACTS  OP 

AN  AGENT. 

44.  Can  a  principal  be  held  liable  criminally  for  the  acts  of 
his  agent? 

Ordinarily  he  cannot,  as  a  criminal  intent  is  almost  invariably 
necessary  for  criminal  liability.  The  only  exceptions  are  (1)  where 
a  principal  is  indicted  for  nuisance,  as  the  obstructing  of  a  road 
by  his  agent,  in  which  case,  however,  the  offense  is  nearer  a  tort, 
Keg.  v.  Stephens,  L.  R.  1.  Q.  B.  702;  and  (2)  where  a  statute  has 
been  passed  in  such  a  form  that  masters  are  made  criminally  liable 
though  personally  innocent,  as  in  case  of  a  sale  of  liquor  to  im- 
proper persons.  George  v.  Gobey,  128  Mass.  289;  People  v.  Roby, 
52  Mich.  577. 

XII.  LIABILITY  OF  PRINCIPAL  FOR  INJURY  OCCASIONED  TO  A 

SERVANT  BY  THE  ACT  OF  A  FELLOW-SERVANT. 
a.   Generally. 

45.  The  X.  railroad  company  allows  the  Y.  railroad  com- 
pany to  run  on  its  tracks.     A.  is  hired  by  the  X.  company  to  act 
as  switchman  for  trains  of  both  companies,  and  is  injured  by 
the  negligence   of  a   brakeman  of  the   Y.   company.     Can   he 
recover ? 

Yes.  The  X.  company  is  the  one  which  could  exact  obedience 
-from  A.,  and,  therefore,  he  is  its  servant,  and  only  employees  of 
that  company  are  his  fellow-servants.  Had  A.  and  B.  been  fellow- 
servants,  no  recovery  would  have  been  possible.  Swainson  v.  Ry. 
Co.,  3  Exch.  Div.  341. 

The  principle  that  a  master  is  responsible  for  the  torts  of  his  agent 
Is  not  extended  to  injury  by  fellow-servants.  This  "  fellow-servant 
rule  "  though  only  sixty  years  old,  is  universally  accepted.  The  rea- 
sons for  its  original  introduction  were  those  of  supposed  justice  to  the 
master,  in  that  the  servant  could  protect  himself,  if  he  would,  by  re- 
straining his  fellow-servant,  or  remonstrating  with  his  master.  This 
reasoning,  however,  has  lost  what  little  force  it  may  ever  have  had,  in 
these  days  when  a  servant  of  a  large  company  doesn't  even  know  who 
his  fellow-servants  are. 

It  has  been  frequently  stated  that  a  servant  contracts  to  run  the  risks 
from  the  negligence  of  his  fellow-servants  when  he  enters  the  em- 
ployment. Farwell  v.  R.  R.  Co.,  45  Mass.  49,  57.  This  is  a  mere  fiction, 
however,  as  clearly  appears  in  a  case  where  a  servant  doesn't  know 
who  his  fellow-servants  are.  He  can't  agree  to  a  risk  when  he  doesn't 
know  of  its  existence.  The  application  of  the  rule  depends  simply 
upon  a  question  of  fact,  whether  men  are  fellow-servants  or  not. 
Johnson  v.  Lindsay.  L.  R.  23  Q.  B.  Div.  508. 

The  rule  goes  so  far  as  to  hold  that  a  mere  volunteer,  assisting  a  ser- 


14  QUESTIONS  AND  ANSWERS. 

rant,  cannot  recover  from  the  master,  if  injured.  Flower  v.  Penn.  R. 
K.  Co.,  69  Penn.  St.  210;  Ry.  Co.  v.  Bolton,  43  Ohio  St  224.  See  contra, 
Althorf  v.  Wolfe,  22  N.  Y.  355. 

46.  A.  and  B.  are  fellow-servants.     B.  injures  A.'s  wife  neg- 
ligently.    Can  A.  recover  from  their  common  master  for  the  loss 
of  his  wife's  services? 

Yes.  The  fellow-servant  rule  is  not  extended  beyond  personal 
injury  suffered  by  a  fellow-servant.  Gannon  v.  R.  ft.  Co.,  112 
Mass.  234. 

b.    Who  is  a  Servant  within  the  Meaning  of  the  Fellow-Servant 

Rule. 

47.  A.  worked  for  a  railroad  company,  and  part  of  the  con- 
sideration of  his  hiring  was  that  he  should  be  carried  by  de- 
fendant's train  to  the  shops.     When  being  so  carried  he  was 
injured  by  a  brakeman.     Would  the  company  be  liable? 

No.  Though  A.'s  hours  of  work  had  not  begun  when  injured, 
it  is  held  that  the  conveyance  was  incident  to  the  employment 
and  that  the  parties  were  fellow-servants.  Vick  v.  E.  E.  Co.,  95 
N.  Y.  267;  Seaver  v.  B.  R.  Co.,  14  Gray,  446.  Had  A.  actually 
paid  his  fare,  the  result  would  be  contrary,  and  in  Pennsylvania 
it  is  held  that  A.  is  not  a  fellow-servant  in  either  case.  O'Donnell 
v.  ft.  R.  Co.,  59  Penn.  St.  239,  247. 

In  order  to  make  men  fellow-servants,  they  need  not  be  doing 
the  same  kind  of  work.  It  is  enough  "  if  they  are  in  the  employ- 
ment of  the  same  master,  engaged  in  the  same  common  work  and 
performing  duties  and  'services  for  the  same  general  purposes.'* 
Laning  v.  R.  R.  Co.,  49  N".  Y.  521,  528;  R.  R.  Co.  v.  Lewis,  33 
Ohio  St.  196,  199;  Crispin  v.  Babbitt,  81  N.  Y.  516,  521;  Beach  on 
Cont.  Neg.  (1st  ed.),  §.§  110,  116;  Mechem  on  Agency,  §  668;  Mc- 
Kinney  on  Fell.-Serv.  165. 

c.     Vice-Principal — Alter  Ego. 

48.  X.,  a  common  laborer  in  a  mill,  is  injured  by  the  negli- 
gence of  his  superintendent.    Are  the  two  fellow-servants,  or  can 
X.  recover  from  the  mill  owner? 

By  the  best  view,  they  are  fellow-servants  and  X.  cannot  recover. 
Their  grade  does  not  make  them  the  less- fellow-servants.  Howells 
v.  Landore  Steel  Co.,  L.  R.  10  Q.  B.  62;  Crispin  v.  Babbitt,  81 
N.  Y.  516,  520;  McKinney  on  Fell.-Serv.,  §  58,  collecting  N.  Y. 
cases.  Compare  Houser  v.  R.  R.  Co.,  60  Iowa,  230. 

A  so-called  vice-principal  rule  has  obtained  in  some  jurisdictions, 
however,  where  it  is  held  that  a  man  in  authority  is  the  principal's 
"  alter  ego,"  and  when  an  employee  is  injured  by  the  vice-principal's 


AGENCY.  15 

negligence,  he  may  recover  from  the  principal.  This  theory  has  been 
adopted  in  Illinois,  Iowa,  Kentucky,  Missouri,  Nebraska,  New  York, 
North  Carolina,  Ohio,  Pennsylvania,  Tennessee  and  Virginia.  See 
Lewis  v.  Seifert,  116  Penn.  St.  628;  Hardy  v.  R.  R.  Co.,  36  Fed.  Rep. 
657;  Little  Miami  R.  R.  Co.  v.  Stevens,  20  Ohio,  415,  431;  Malone 
v.  Hathaway,  64  N.  Y.  5,  0.  But  see  Brick  v.  R.  R.  Co.,  98  N.  Y.  211. 
The  rule  in  the  United  States  Supreme  Court  is  doubtful.  Compare 
R.  R.  Co.  v.  Ross,  112  U.  S.  377 *and  R.  R.  Co.  v.  Baugh,  149  id.  368. 

The  weakness  of  this  vice- principal  rule  is  shown  in  that  it  does  not 
work  both  ways,  as  the  superintendent  is  treated  as  a  fellow-servant 
so  as  to  bar  his  recovery  from  the  master  if  injured  by  other  servants 
of  lower  grade,  even  though  he  is  not  a  fellow-servant  if  he  injures 
them. 

d.    Duty  of  Principal  to  Supply  Suitable  Appliances. 

49.  The  plaintiff,  an  engineer,  was  injured  by  the  defects  in'        « 
his  locomotive,  which  were  known  to  the  road  superintendent/ 
Can  he  recover  from  the  railroad  company? 

Yes.     It  is  the  duty  of  the  master  to  use  all  due  care  in  supply- 
ing 'proper  tools  and  appliances  for  a  servant.     This  duty  is  not 
lessened  by  delegating  it  to  others,  and  any  negligence  by  the 
master  or  his  agents,  either  of  high  or  low  degree,  in  furnishing 
appliances,  makes  the  master  liable.     The  master,  however,  is  not, 
an  insurer;  and  where  it  is  proved  that  there  has  been  no  negligence 
on  his  part  or  on  the  part  of  the  agent  delegated  to  supply  the , 
appliances,  there  is  no  liability.     Hough  v.  Ey.  Co.,  100  U.  S.  213; 
Ladd  v.  B.  E.  Co.,  119  Mass.  412. 

It  is  to  be  noticed  as  above  stated,  that  this  duty  to  furnish  safe 
appliances  is  not  affected  by  the  fellow-servant  rule.  Ford  v.  R.  R. 
Co.,  110  Mass.  240,  255. 

The  same  duty  rests  upon  the  master  to  furnish  a  proper  place  for 
the  servants  to  work  in.  Anderson  v.  Bennett  (Or.),  J9  Pac.  Rep.  765; 
Manning  v.  Hogan,  78  N.  Y.  615;  McKinney  on  Fellow-Servants,  72. 

e.    Duty  of  Principal  to  Select  Competent  Agents  and  to  Provide 
Sufficient  Number  of  Them. 

50.  A.  was  injured  by  the  negligence  of  a  fellow-servant,  who, 
however,  was  not  a  fit  person  to  do  the  work  to  which  he  had  been 
assigned.     Can  A.  recover? 

Yes.  The  duty  of  the  master  to  furnish  proper  fellow-ser- 
vants is  the  same  as  that  to  furnish  proper  appliances,  requiring 
due  care  on  hi?  part,  Wabash  Ey.  Co.  v.  McDaniels,  107  TJ-  S. 
454;  Tan-ant' v.  Webb,  18  C.  B.  797. 

*  Since  the  publication  of  this  book,  the  U.  S.  Supreme  Court  has  overruled  the  Ross  ca?e, 
and  has  practically  declared  against  the  vice-principal  rule.  New  hngland  11.  R.  Co.  v. 
Conroy,  175  U.  S.  85. 


16  QUESTIONS  AND  ANSWERS. 

f.    Agent's  Knowledge  of  Defects. 

51.  A.  goes  into  an  employment  knowing  of  certain  defects 
in  the  machinery.     Can  he  recover  if  injured  through  such 
defects?     Suppose   the  defects  arise  after  he   enters   the   em- 
ployment? 

If  the  agent  knows  of  the  defects  when  he  enters  the  employ- 
ment, he  accepts  the  risk  and  cannot  recover  later.  Gibson  v. 
Erie  By.  Co.,  63  N.  Y.  449. 

If  the  defects  arise  later,  he  also  takes  the  risks  if,  knowing  of 
them,  he  says  nothing.  If  he  remonstrates  and  changes  are  prom- 
ised, he  has  a  right  to  wait  a  reasonable  time  before  he  can  be 
held  to  assume  the  risk.  Clark  v.  Holmes,  7  H.  &  N.  937;  Ford 
v.  R.  R.  Co.,  110  BJass.  240,  261;  Hough  v.  R.  R.  Co.,  100  U.  S.  213. 

g.     Decisions    under    Statutes    Modifying    the    Common-Law    Rule. 

52.  In  a  jurisdiction  where  an  employers'  liability  act  is  in 
force,  may  an  employee,  by  contract,  express  or  implied,  agree 
not  to  seek  the  benefit  of  such  a  statute,  if  injured? 

The  best  decisions  upon  principle  are  to  the  effect,  that  he  can- 
not. The  act  is  passed  for  reasons  of  public  policy,  and  it  is 
against  public  policy  to  allow  the  intended  beneficiary  to  contract 
away  the  benefits  of  the  statute.  Kansas  Pacific  R.  R.  Co.  v. 
Peavey,  29  Kan.  169;  By.  Co.  v.  Spangler,  44  Ohio  St.  471,  476; 
Mecheift  on  Agency,  §  671. 

In  England  it  was  held  that  such  a  contract  could  be  made. 
Griffiths  v.  Earl  of  Dudley,  L.  R.  9  Q.  B.  Div.  357.  But  a  statute 
was  at  once  passed  by  Parliament  prohibiting  such  a  contract. 

53.  Where  an  employers'  liability  act  is  in  force,  does  the 
common-law  rule  of  rolejiti  non  fit  injuria  apply? 

Where  such  a  statute  is  in  force,  or  where  any  statute  has  been 
enacted  for  the  protection  of  laborers,  the  rule  of  rolenti  non  fit 
injuria  ought  not,  in  principle,  to  apply.  Such  statutes  are  passed 
for  reasons  of  public  policy,  to  protect  the  lives  of  the  laboring 
classes,  and  it  is  as  much  against  public  policy  to  allow  the  privileges 
of  such  statutes  to  be  waived  as  to  allow  them  to  be  contracted  away. 
See  Ques.  52,  supra. 

Thus,  it  has  been  held,  that  when  a  statute  required  certain  precau- 
tions to  be  taken  to  protect  miners  from»injury  at  the  pit  of  a  mine, 
and  a  miner  was  injured  by  the  absence  of  such  statutory  precautions, 
the  defense  of  volenti  non  fit  injuria  was  not  open,  for  reasons  of  public 
policy,  to  the  owner  who  had  violated  the  statute.  Baddeley  v.  Earl 
Granville,  L.  R.  19  Q.  B.  Div.  423.  The  principle  of  the  decision  seems 
perfectly  sound  and  ha,s  been  followed  in  a  number  of  cases.  Bartlett 
Coal,  etc.,  Co.  v.  Roach,  68  111.  174;  Johnson  v.  Steam  Gauge  Co.,  146 


AGENCY.  17 

N.  Y.  152;  Shepard  v.  Buffalo,  etc.,  Co.,  35  id.  641,  644;  Simpson,  v.  N. 
Y.  Rubber  Co.,  80  Hun  (N.  Y.I.  415;  Knisley  v.  Pratt,  75  id.  323. 

In  the  last  case,  however,  judgment  was  reversed  by  the  Court  of 
Appeals,  and  by  the  opinion  handed  down  the  previous  cases  seem, 
in  effect,  overruled.  The  court  held,  that  there  was  "  no  reason  in 
principle  or  authority  why  an  employee  should  not  be  allowed  to 
assume  the  obvious  risks  of  the  business  as  well  under  the  Factory 
Act,  as  otherwise."  Knisley  v.  Pratt  148  X.  Y.  372.  See  also  Free- 
man v.  Glens  Falls,  etc.,  Co.,  70  Hun  (N.  Y.),  531,  affirmed  142  N.  Y.  630. 

• 
XIII.    UNDISCLOSED  PRINCIPAL. 

54.  Upon  what  ground  can  an  undisclosed  principal  be  held 
on  a  contract  made  by  his  agent,  and  what  is  his  liability? 

The  only  ground  for  holding  an  undisclosed  principal  is  that 
the  agent  actually  is  representing  him,  and  it  is  simply  a  case  of 
good  luck  for  the  third  party  that  he  may  sue  either  the  undis- 
closed principal  or  the  agent  as  he  sees  fit.  It  is  plain  that  the 
principal  is  not  held  on  any  theory  of  quasi  contracts,  for  he  has 
to  pay  the  contract  price;  nor  is  he  held  on  estoppel,  as  he  has 
made  no  representations. 

The  undisclosed  principal  is  liable  in  an  action  by  the  third 
party  in  all  cases  where  the  latter  has  not  made  an  election  to  hold 
the  agent,  after  knowing  of  the  agency;  Thompson  v.  Davenport, 
9  B.  &  C.  78;  or  has  not  so  acted  as  to  mislead  the  principal  into 
supposing  that  he  has  been  paid  by  the  agent.  '  Irvine  v.  Watson, 
L.  R.  5  Q.  B.  Div.  414;  Fradley  v.  Hyland,  37  Fed.  Rep.  49,  52. 

55.  What  constitutes  an  election  by  the  third  party  to  hold 
the  agent  or  the  undisclosed  principal  liable? 

Election  is  a  question  of  fact,  and  the  only  conclusive  evidence 
of  it  is  the  pursuing  of  the  claim  of  one  of  the  parties  to  an  actual 
judgment.  Curtis  v.  Williamson,  L.  R.  10  Q.  B.  57.  When  the 
principal  is  a  foreigner,  however,  it  is  almost  a  presumption  of 
law  in  England  that  th*e  domestic  agent  is  the  only  one  to  be  held. 
Button  v.  Bulloch,  L.  R.  8  Q.  B.  331.  In  this  country  the 
question  of  who  is  liable  is  treated  as  one  of  fact  in  all  cases. 

56.  Under  what  circumstances  can  the  undisclosed  principal 
recover  from  the  third  party? 

He  can  recover  in  all  cases,  except  where  the  third  party  has 
acted  in  reliance  upon  the  representation  that  the  agent  is  the 
principal.  In  such  cases  the  principal  stands  in  the  agent's  shoes 
and  must  suffer  any  set-off  or  counterclaim  which  the  third  party 
had  against  the  agent.  Borries  v.  Bank,  L.  R.  9  C.  P.  38. 
2 


18  QUESTIONS  AND  ANSWERS. 

57.  A.,  acting  for  an  undisclosed  principal,  draws  a  bill  of 
exchange.     Can  the  principal  be  sued  on  the  bill?     Suppose  A. 
had  signed  a  sealed  instrument?  a  written  contract? 

Owing  to  the  peculiar  nature  of  bills  and  notes  and  sealed  in- 
struments, the  doctrine  of  an  undisclosed  principal  does  not  apply 
to  them.  Only  parties  which  appear  on  such  instruments  are 
liable.  Pentz  v.  Stanton,  10  Wend.  271,  275. 

In  the  case  of  an  ordinary  written  contract,  however,  the  prin- 
cipal is  liable.    Beckham  v.  Drake,  9  M.  &  W.  79,  91. 
t 

XIV.    TERMINATION  OF  THE  AGENCY. 

a.    Revocation  by  Principal. 

58.  A.'s  agent,  by  express  authority,  contracts  for  the  sale  of 
certain  goods,  but  before  he  has  made  a  memorandum  in  writing, 
to  satisfy  the  Statute  of  Frauds,  A.  revokes  the  authority.     Is 
A.  freed  from  liability? 

Yee.  The  contract  was  made  by  express  authority  and  was 
perfectly  good,  but  it  cannot  be  enforced  without  a  memorandum 
in  writing.  Farmer  v.  Robinson,  2  Camp.  339,  note. 

59.  By  the  express  contract  of  hiring,  A.   agreed  that   the 
authority  given  his  agent  to  sell  goods  should  not  be  revoked  for 
six  months.     A.  does  revoke  before  that  time.     Can  the  agent 
continue  to  act? 

No.  The  principal  has  the  power  to  revoke  the  authority  given 
an  agent  in  every  case,  except  where  the  agency  is  coupled  with 
an  interest  in  the  thing  itself,  independent  of  the  compensation. 
See  Ques.  62,  infra.  The  principal  may  be  liable  to  the  agent 
in  damages  for  the  revocation,  but  that  will  not  affect  his  actual 
power  to  revoke.  Blackstone  v.  Buttermore,  53  Penn.  St.  266;  Parke 
v.  Frank,  75  Cal.  364,  368;  Stensgaard  v.  Smith,  43  Minn.  11;  Hunt 
v.  Eousmaniere,  8  Wheat.  (U.  S.)  174,  203.. 

60.  A.  represents  that  his  agent  has  extensive  powers  for  an 
unlimited  time,  and  then  revokes  the  authority  without  giving 
notice  to  those  who  had  previously  dealt  with  the  agent.     Is  A., 
liable  on  contracts  made  with  the  agent  after  the  revocation,  by 
persons  who  still  suppose  that  A.  is  principal? 

Yes.  Though  the  revocation  was  good,  yet,  after  representing 
that  the  agent  had  such  wide  powers,  A.  would  be  estopped  to  deny 
that  he  was  still  principal.'  Under  such  circumstances  he  must 
give  notice  of  the  revocation  of  authority  to  those  who  are  likely 
to  be  misled.  Tier  v.  Lampson,  35  Vt.  179,  182. 


AGENCY.  19 

b.    Revocation  by  Death. 

61.  A.'s  agent  had  authority  to  draw  money  from  the  bank, 
and  the  bank,,  before  A.'s  death  was  known,  cashed  one  of  the 
agent's  checks  drawn  after  A.  died.     Does  an  action  lie  against 
the  bank? 

Yes.  Death  terminates  the  agency  instantly,  and  in  revocation 
by  death,  the  question  of  estoppel  is  no  longer  considered,  so  that 
the  ignorance  of  the  bank  will  not  save  it.  It  has  dealt  with  a 
person  who  had  no  authority,  and  is  responsible  to  the  estate. 
Davis  v.  Windsor  Savings  Bank,  46  Vt.  728.  Persons  dealing  with 
agents  run  the  risk  of  revocation  by  death.  Weber  v.  Bridgman, 
113  X.  Y.  600,  605.  The  rule  seems  harsh,  but  is  fixed.  An  agent 
cannot  represent  a  person  after  he  is  dead,  and  personal  representa- 
tion underlies  the  entire  law  of  agency. 

In  Pennsylvania  it  is  held  iu  Cassidy  v.  McKenzie,  4  Watts  &  Serg. 
282,  that  where  an  agent  acts  in  ignorance  of  his  principal's  death, 
the  contract  is  not  void,  but  this  goes  on  the  idea  of  the  Roman  Law, 
of  charging  the  estate  of  the  deceased.  On  common-law  principles 
such  a  decision  is  not  sound. 

62.  A.  gives  his  agent  authority  to  sell  property  and  from 
the  proceeds  to  pay  himself  a  debt  due  from  A.     Would  the  death 
of  A.  revoke  the  agent's  authority? 

Xo.  This  is  a  case  where  the  authority  is  coupled  with  an 
interest,  and  is,  therefore,  irrevocable  by  death  or  otherwise.  The 
agent's  interest  is  in  the  nature  of  a  lien.  Marzion  v.  Pioche,  8 
Cal.  522,  536;  Gaussen  v.  Morton,  10  B.  &  C.  731;  Hutching  v. 
Hebbard,  34  X.  Y.  24,  27. 

c.    Revocation  by  Insanity. 

63.  After  A.  becomes  insane,  his  agent,  B.,  makes  a  contract 
with  C.,  who  knows  of  A.'s  condition,  and  another  contract  with 
D.,  who  is  ignorant  of  it.     What  are  the  rights  of  C.  and  D. 
upon  the  contracts? 

C.'s  contract  is  invalid  and  D.'s  is  perfectly  good.  The  insanity 
of  the  principal  is  held  to  be  a  revocation,  or  at  least  a  suspension 
of  authority;  Davis  v.  Lane,  10  X.  H.  156;  except  as  to  innocent 
third  parties,  who  are  protected.  Drew  v.  Xunn,  L.  E.  4  Q.  B.  Div. 
661.  The  reason  for  the  rule  of  revocation  by  insanity  is 
the  same  as  that  for  revocation  by  death,  i.  e.,  that  the  relation 
of  agency  can  exist  only  so  long  as  there  is  a  principal  capable 
of  acting.  The  rule  is  not  logically  carried  out,  however,  jn  that 
innocent  third  parties  are  protected  in  the  case  of  insanity,  while 
in  the  case  of  death  innocence  is  of  no  avail. 


20  QUESTIONS  AND  ANSWERS. 

•The  insanity  of  the  agent,  also,  of  course  terminates  the  relation. 
The  mental  soundness  of  the  agent  is  a  condition  precedent,  except 
where  the  agent  has  a  power  coupled  with  an  interest.  State  v. 
Greesdale,  106  Ind.  364,  366;  Graver's  Appeal,  50  Penn.  St.  189;  Bartlett 
T.  Hamilton,  40  Me.  435. 

d.    Revocation  by  Bankruptcy. 

64.  After  A/s  bankruptcy,  his  agent  makes  a  contract  in 
A.'s  name.     Is  it  good? 

No.  When  a  man  is  adjudicated  a  bankrupt,  the  power  of  his 
agent  to  bind  his  bankrupt  estate  ceases.  That  power  is  thereby 
taken  out  of  his  hands.  Drinkwater  v.  Dowding,  Cowp.  251;  Minett 
v.  Forrester,  4  Taunt.  541;  Parker  v.  Smith,  16,  East,  382.  Mere 
insolvency,  however,  is  not  enough  to  vitiate  the  contract.  Mechem 
on  Agency,  §  264. 

The  bankruptcy  of  the  agent  also  terminates  the  relation  unless 
his  acts  are  merely  ministerial.  Audenr.ied  v.  Betteley,  8  Allen 
(Mass.),  202;  Hudson  v.  Granger,  5  Barn.  &  Aid.  27. 

e.    Revocation  by  War. 

65.  A  principal  lives  in  Spain  and  the  agent  in  this  country. 
What  effect  would  war  between  the  countries  have  upon   the 
relation? 

As  a  general  rule  war  operates  as  a  dissolution  of  the  relation. 
Business  relations  between  the  two  countries  have  become  illegal 
and  communication  between  the  parties  has  become  impossible. 
Ins.  Co.  v.  Davis,  95  U.  S.  425. 

XV.     EIGHTS  AND  LIABILITIES  OF  PRINCIPAL  AND  AGENT  IN- 
TER SE. 

a.    Generally. 

66.  ~A.   was  appointed  treasurer  of  a  horse  show  without 
compensation.     Owing  to  his  failure  to  accept  the  appointment, 
B.  could  not  get  a  premium  to  which  lie  was  entitled.     Is  A. 
liable? 

No.  It  is  always  possible  to  create  an  agency  without  com- 
pensation, i.  e.,  by  appointment,  provided  the  appointment  is  ac- 
cepted, but  the  way  of  showing  an  acceptance  is  by  acting,  and 
there  was  only  a  failure  to  act  here,  which  shows  rather  a  non- 
acceptance.  The  rule  is  usually  stated  that  a  gratuitous  agent 
is  only  liable  .for  malfeasance,  and  -not  liable  for  nonfeasance. 
Balfe  y.  West,  13  C.  B.  466;  Mechem  on  Agency,  §  478;  Thome  v. 
Deas,  4  Johns.  (N.  Y.)  84.  But  the  real  reason  for  not  holding 
the  gratuitous  agent  in  a  case  of  nonfeasance  seems  to  be,  as  sug- 
gested, that  the  relation  of  agency  has  never  arisen.  After  the 


AGENCY.  21 

gratuitous  agent  has  once  begun  to  act,  and  so  accepted  the  agency 
and  its  duties,  he  is  subject  to  all  its  liabilities.  Mechem  on 
Agency,  §  478;  Williams  v.Higgins,  30  Md.  404;  Spencer  v.  Fowles, 
18  Mich.  9. 

67.  A.  appoints  B.  a  gratuitous  agent.     B.  ads  to  the  best 
of  his  ability,  but  is  totally  unfit  for  the  work.     Has  A.  any 
right  to  recover  for  injury  suffered? 

No.  A  gratuitous  agent  is  only  required  to  use  such  skill  as 
he  has,  and  is  not  liable  if  not  actually  negligent.  He  differs 
materially  from  a  paid  agent  who  must  use  such  skill  as  a  reason- 
able man  would  under  the  circumstances.  Shiells  v.  Blackburne, 
1  H.  Blackstone,  158;  Wilson  v.  Brett,  11  M.  &  W.  113. 

68.  A.  consigned  goods  to  B.}  with  orders  not  to  sell  below 
a  certain  price.     B.  made  advances  on  the  goods,  and  as  A. 
failed  to  repay  them,  he  sold  the  goods  at  the  best  price  possible, 
but  below  the  price  fixed  by  A.     Is  he  liable  for  so  doing? 

By  the  American  rule  he  is  not.  The  consignee  is  always  given 
a  right  to  protect  himself  for  advances,  in  spite  of  instructions. 
Parker  v.  Brancker,  39  Mass.  40;  Field  v.  Farrington,  10  Wall. 
(U.  S.)  141.  He  may  also  refuse  to  sell  if  told  to  do  so  at  a  price 
too  low  to  reimburse  him.  Weed  v.  Adams,  37  Conn.  378. 

By  the  English  rule  B.  would  be  liable  for  the  sale.  There  a 
factor  making  subsequent  advances  has  none  of  the  rights  of  a 
pledgee.  Smart  v.  Sanders,  5  C.  B.  895,  914.  And  even  if  the 
advances  are  cotemporaneous,  the  English  factor  has  none  of  the 
pledgee's  powers  if  they  are  not  expressly  stipulated  for  in  the 
contract.  De  Comas  v.  Frost,  3  Moore,  P.  C.  (N.  S.)  158. 

69.  An  agent  collects  money  for  his  principal  and  puts  it 
with  some  of  his  own  in  a  money  drawer.     All  of  the  money  is 
then  stolen  without  the  fault  of  the  agent.     Is  he  in  any  w9y 
liable? 

The  agent  would  be  liable  for  the  whole  amount.  Any  mixture 
of  the  principal's  money  makes  the  agent  a  mere  debtor,  and  no 
longer  a  trustee,  and  after  becoming  a  debtor  he  is  liable  abso- 
lutely. Mechem  on  Agency,  §  529.  Wherever  the  identity  of 
the  money  is  lost,  the  result  is  the  same,  even  if  the  agent  depos- 
ited the  money  in  a  bank  in  a  separate  account,  but  in  his  own 
name.  Naltner  v.  Dolan,  108  Ind.  500. 

b.     Agent  Acting  under  Del  Credere  Commission. 

70.  Is  a  parol  del  credere  commission  bad  under  the  Statute 
of  Frauds? 


22  QUESTIONS  AND  ANSWERS. 

No.  A  del  credere  factor  does  guarantee  the  payment  of  the 
debts  to  be  collected,  but  his  contract  is  more  than  a  contract  of 
guaranty,  and  is  not  within  the  meaning  of  the  statute  as  to  the 
payment  'of  the  debts  of  third  persons.  Wolff  v.  Koppel,  5  Hill 
(N.  Y.),  458. 

71.  Has  a  del  credere  factor  a  right  to  have  the  debt  of  his 
principal  "written  off'.'  against  a  debt  of  his  own? 

No.  He  is  not  relieved  from  the  ordinary  obligation  of  an  agent 
to  receive  the  payment  for  the  principal,  even  though  he  has  guar- 
anteed the  payment.  He  may  become  bankrupt  himself.  Cot- 
terall  v.  Hindle,  L.  R.  1  C.  P.  186. 

e.    Bad  Faith  of  Agent.    Inconsistent  Positions  and  Secret  Profits. 

72.  A.  appoints  B.  his  agent  to  sell  property  for  $17,000. 
B.  makes  a  bona  fide  contract  for  that  amount,  and  then  learns 
that  he  can  get.  $26,000,  whereupon  he  gets  a  release  of  the  first 
contract  and  sells  for  $26,000  in  his  own  name,  and  hands  over 
to  A.  $17,000.     Has  A.  any  action  for  the  remaining  $9,000 ? 

Yes.  B.,  as  an  agent,  was  in  a  fiduciary  relation  which  de- 
manded the  utmost  good  faith  on  his  part.  Even  if  his  first  con- 
tract was  bona  fide  and  $17,000  was  the  price  fixed  by  A.  himself, 
still  when  B.  found  that  he  could  do  better  for  his  principal,  that 
was  his  legal  duty.  The  relation  of  principal  and  agent  is  guarded 
most  carefully  by  the  courts,  and  no  transactions  are  allowed  whose 
effect  or  tendency  is  to  benefit  the  agent  at  the  expense  of  the 
principal.  Bain  v.  Brown,  56  N.  Y.  285. 

73.  A.  writes  B.  to  buy  him  certain  stock  at  not  more  than 
$150  per  share.     B.  writes  that  lie  has  bought  at  that  price,  and 
sends  some  shares  of  his  own.     Can  B.  recover  the  purchase 
pfice  ? 

No.  Though  the  agency  was  gratuitous,  and  even  if  B.  was 
perfectly  honest,  the  fiduciary  relation  between  the  parties  was 
such  that  B.  could  not  buy  from  himself  without  A.'s  knowledge. 
Conkey  v.  Bond,  36  N.  Y.  427.  And  even  where  a  trade  custom  is 
proved,  by  which  an  agent  can  transfer  his  own  property  to  the 
principal,  it  is  held  that  the  custom  will  not  be  effective  unless 
the  principal  knew  of  it,  as  by  it  the  agent  is  placed  in  an  incon- 
sistent position.  Robinson  v.  Mollett,  L.  R.  7  H.  of  L.  802; 
Butcher's  Sons  v.  Krauth,  14  Bush  (Ey.),  713. 

74.  A  committee  of  fourteen  men  is  appointed  to  carry  out  cer- 
tain public  improvements.      Could  a  firm  composed  of  two  of 
their  members  take  the  contract  to  do  the  work? 


AGENCY.  23 

Xo.  Though  by  no  means  a  majority  of  the  board,  the  two 
members  of  the  committee  would  have  no  right  to  place  them- 
selves in  a  position  hostile  to  the  public  interests.  People  v.  Town- 
ship Board,  11  Mich.  222. 

75.  A.   leases  a  building  for  business  purposes.     Can  his 
agent  in  the  business  legally  contract  for  a  renewal  of  the  lease 
to  himself,  personally,  without  A/s.  knowledge? 

No.  As  long  as  a  man  is  an  agent,  he  is  held  strictly  to  his 
fiduciary  duty.  The  good-will  of  the  lease  is  a  valuable  interest 
to  A.,  and  his  agent  cannot  tamper  with  it.  Davis  v.  Hamlin, 
108  111.  39. 

76.  A.  employs  B.  to  furnish  him  with  information  regarding 
certain  tracts  of  land  in  order  that  he  may  purchase  it.     B. 
hinders  A.  somewhat,  and  then  buys  the  land  himself.     Has 
A.  any  remedy? 

Yes.  He  can  hold  B.  as  a  trustee  of  the  land  so  acquired 
or  compel  him  to  account  for  the  value  of  it.  Winn  v.  Dillon,  27 
Miss.  494;  Gardner  v.  Ogden,  22  X.  Y.  327;  Haight  v.  Pearson,  39 
Pac.  Rep.  479.  In  Massachusetts,  however,  the  law  is  contra,  and 
A.  would  have  no  remedy,  on  the  ground  that  B.'s  duty  was  not 
such  as  to  deprive  him  of  the  right  to  buy.  Collins  v.  Sullivan,  135 
Mass.  461;  Emerson  v.  Galloupe,  158  id.  146.  But  see  Mechem  on 
Agency,  §  469. 

77.  A.  is  employed  by  B.  to  purchase  land  on  commission,  and 
by  C.  to  sell.     Can  he  under  any  circumstances  earn  the  com- 
mission from  both? 

He  can,  if  both  parties  know  the  facts.  Bell  v.  McConnell,  37 
Ohio  St.  396;  Redfield  v.  Tegg,  38  N.  Y.  212;  Rebinson  v.  Jarvis, 
2-3  Mo.  App.  421.  Where  either  or  both  of  the  principals  are  ig- 
nc-ant  of  the  agent's  attempt  to  earn  double  commissions,  he  cannot 
get  them  from  either,  and  that  irrespective  of  the  agent's  honesty. 
The  dangerous  tendency  of  such  transactions  is  the  thing  consid- 
ered. Scribner  v.  Collar,  40  Mich.  375;  Rice  v.  Wood,  113  Mass. 
133;  Bell  v.  McConnell  (supra). 

78.  A.,  a  broker,  is  employed  as  a  middleman  by  both  B.  and 
C.,  the  one  wishing  to  sell  and  the  other  to  buy.     Without  their 
knowledge  of  the  facts  he  introduces  them  to  each  other  and  they 
make  a  contract  themselves,  in  which  A.  takes  no  part.     Can  A. 
recover  his  commissions  from  both? 

The  better  view  is  that  he  cannot.  To  allow  it  produces  the 
temptation  that  the  agent  will  bring  together  only  those  who 
have  employed  him.  Mechem  on  Agency.  §£  953,  973;  "Walker  v. 
Osgood,  C8  Mass.  348.  But  see  contra,  Siegel  v.  Gould,  7  La.ns. 
177;  Orton  v.  Scofield,  61  Wis.  382. 


24  QUESTIONS  AND  ANSWEKS. 

79.  A.,  plaintiff's  intestate,  was  insured  in  the  X.  company; 
the  company  agreed  to  cancel  the  policy  and  return  the  premium 
notes  and  sent  them  to  B.,  A.'s  agent,  to  whom  A.  had  given  the 
policy,  with  instructions  to  surrender  it.     Before  the  notes  were 
canceled,  B.  applied  to  have  the  policy  reissued  to  him.     The 
policy  was  reissued  to  B.,  and  A.  thereafter  died.     What  rights 
has  A.'s  administrator? 

He  can  compel  B.  to  account  for  the  advantage  thus  obtained. 
It  makes  no  difference  if  the  agent  did  use  his  own  money  to  obtain 
this  advantage.  Dutton  v.  Willner,  52  N.  Y.  312,  319. 

d.    Agent's  Right  to  Compensation. 

80.  A.  employed  B.  to  act  as  selling  agent  on  commission. 
A.  accepted  orders  which  B.  procured  and  then  refused  to  de- 
liver the  goods  or  to  pay  B.'s  commissions.     Has  B.  a  right  of 
action  ? 

Yes.  B.  had  done  everything  to  earn  his  commission,  when  he 
procured  a  good  order  which  A.  accepted.  If  the  transaction 
then  failed  through  A.'s  fault,  B.  is  not  to  suffer.  Lockwood  v. 
Levick,  8  C.  B.  (N.  S.)  603. 

In  Trapp  v.  Wallace,  41  N.  1.  477,  A.  wanted  to  purchase  real 
estate,  and  B.  in  good  faith  introduced  C.  to  him  who  had  property 
he  wished  to  sell.  A  contract  was  entered  into  which  A.  subsequently 
refused  to  carry  out  because  C.  could  not  give  a  good  title.  It  was 
held,  however,  that  it  was  no  answer  to  B.'s  claim  for  commission, 
that  the  title  was  defective,  on  the  ground  that  B.  did  not  undertake 
that  It  should  be  good.  The  contract  did  not  make  his  commissions 
depend  upon  the  validity  of  B.'s  title. 

81.  A.  employed  B.  to  sell  all  of  the  coal  from  his  colliery 
that  should  be  sent  to  L.     A.  then  sold  his  colliery.     Has  B.  any 
right  to  recover  commissions? 

No.  A.  made  no  contract  that  coal  should  be  sent  to  L.,  and 
he  could  ship  to  other  points  or  sell  the  colliery.  Ehodes  v.  For- 
wood,  L.  E.  1  App.  Gas.  256.  But  compare  Lewis  v.  Ins. 
Co.,  61  Mo.  534,  where  it  was  held  that  the  insolvency  of  a  com- 
pany did  not  terminate  its  liability  upon  contracts  with  its  agents, 
and  that  they  must  be  paid  though  the  company  was  not  allowed 
to  do  business  by  the  State  authorities. 

XVI.    RIGHT  OF  PRINCIPAL  TO  RESCIND. 

82.  When  an  agent  and  a  third  party  have  secretly  agreed  to 
make  a  contract  for  defrauding  the  principal,  what  are  the  lat- 
ter's  remedies? 


AGENCY.  25 

If  the  principal  acts  before  the  rights  of  third  parties  have  be- 
come involved,  he  may  recover  his  property  and  have  the  contract 
rescinded.  In  any  case  the  third  party  and  the  agent  are  liable 
for  the  injury  to  the  principal.  Panama  Teleg.  Co.  v.  India 
Rubber  Co.,  L.  E.,  10  Ch.  App.  515;  Atlee  v.  Fink,  75  Mo.  100. 

83..  A/s  agent,  B.,  was  secretly  in  the  employ  of  C.,  when  he 
executed  a  contract  for  A.  with  C.  The  terms,  however,  were 
perfectly  fair  to  A.  May  he  still  object? 

Yes.  The  double  agency  is  a  fraud  upon  the  principal,  what- 
ever the  results  or  the  intentions  of  the  parties,  and  he  may,  by 
acting  promptly,  rescind  the  whole  contract  and  recover  back  his 
property.  Panama  Teleg.  Co.  v.  India  Rubber  Co.,  L.  R.  10  Ch. 
App.  515;  Atlee  v.  Fink,  75  Mo.  100;  Ins.  Co.  v.  Ins.  Co.,  14  N.  Y. 
85,  90.  Compare  Hinckley  v.  Arey,  27  Me.  362;  Coltons  v.  Holli- 
day,  59  111.  176. 


BANKRUPTCY. 


I.  JURISDICTION. 

1.  What  courts  have  jurisdiction  of  'bankruptcy  proceedings? 
The  District  Court  of  the  United  States  for  the  district  within 

which  the  bankrupt  had  his  principal  place  of  business,  resided  or 
had  his  domicile  for  the  greater  portion  of  the  six  (6)  months 
preceding  the  filing  of  the  petition.  §§  1  (8)  and  2  (1).* 

2.  What  is  the  effect  of  the  Bankruptcy  Act  upon  State  insol- 
vency laws? 

All  State  insolvency  laws  applying  to  the  same  persons  as  the 
Bankruptcy  Act  are  suspended  by  the  passage  of  the  act,  but  in  so 
far  as  such  laws  do  not  conflict  with  the  federal  law  they  are  valid 
and  continue  operative.  Sturges  v.  Crowningshield,  4  Wheat.  122 ; 
Ogden  v.  Saunders,  12  Wheat.  213;  Ketchum  v.  McNamara,  6 
Am.  B.  E.  160,  72  Conn.  709. 

II.  "VOLUNTARY  PROCEEDINGS. 
a.     How  Instituted. 

3.  Who  may  file  a  petition,  where  and  how  filed,  fees,  etc.? 

Any  person  who  owes  debts  except  a  corporation  may  file  a 
voluntary  petition.  §  4a. 

The  petition,  to  which  is  annexed  a  complete  schedule  of  assets 
and  liabilities  (form  1),  is  filed  in  the  District  Court  in  triplicate, 
§  7a  (8),  and  must  be  accompanied  by  a  filing  fee  of  thirty  dol- 
lars, §§  40a,  48a,  52a,  unless  the  petition  is  accompanied  by  an 
affidavit  that  the  petitioner  is  without  and  cannot  obtain  the  money 
with  which  to  pay  such  fees.  §  ola  (2). 

b.      Partnership   Proceedings. 

4.  If  one  partner  wishes  to  fie  a  partnership  petition  and  the 
other  partner  refuses  to  join,  what  is  the  procedure? 

The  Bankruptcy  Act  treats  a  partnership  as  an  entity.  One 
petition  only  is  filed  in  a  partnership  proceeding  (form  2),  though 
a  set  of  schedules  of  the  partnor^hiT)  assets  and  liabilities  and  a 
•separate  schedule  of  assets  and  liabilities  for  each  partner  must  be 
annexed  thereto. 

*  All  references  by  section  are  to  the  Bankruptcy  Act  of  July  1.  1898.  as 
amended  February  5.  1903.  References  to  general  orders  and  forms  are  to  those 
adopted  by  the  Supreme  Court  under  said  act. 

-26 


BANKRUPTCY.  27 

The  entity  theory,  however,  does  not  prevent  the  adjudication 
of  the  partnership  upon  a  petition  in  which  one  partner  refuses  to 
join.  The  petitioning  partner  files  schedules  for  himself  and  for 
the  partnership  and  accompanies  his  petition  with  a  request  for  a 
subpcena  to  be  served  upon  the  nonassenting  partner  as  in  involun- 
tary cases.  Collier  on  Bankruptcy  (5th  ed.),  70,  72. 

The  latter  may  appear  and  make  any  defenses  and  in  case  of  an 
adjudication  must  file  an  individual  schedule  of  assets  and  lia- 
bilities. Gen.  Ord.  VIII. 

5.  A.,  being  a  member  of  a  partnership,  files  an  individual  peti- 
tion.    The  firm  has  no  assets.     Do  the  partnership  creditors  share 
with  A.'s  individual  creditors  in  the  distribution  of  his  estate? 

Xo.  The  general  rule  is  that  in  bankruptcy  partnership  prop- 
erty is  appropriated  to  the  payment  of  partnership  debts  and  the 
individual  property  of  each  partner  to  the  payment  of  his  indi- 
vidual debts.  §  of. 

It  has  been  held  that  an  exception  to  this  rule  exists  when  there 
are  no-  firm  assets  and  no  solvent  living  partner.  Conrader  v. 
Cohen,  9  Am.  B.  R.  619.  121  Fed.  801  (C.  C.  A.  3d  Cir.) ;  In  re 
Green,  116  Fed.  118,  8  Am,  B.  R.  533. 

The  weight  of  authority,  however,  under  the  present  Act  seems 
to  be  in  favor  of  the  rule  without  exception  that  joint  assets  belong 
to  joint  creditors  and  individual  assets  to  individual  creditors. 
In  re  Janes,  133  Fed.  912,  13  Am.  B.  R.  341  (C.  C.  A.  2d  Cir.) ; 
In  re  Wilcox,  2  Am.  B.  R.  117,  94  Fed.  84;  In  re  Henderson,  16 
Am.  B.  R.  91,  142  Fed.  588. 

III.  INVOLUNTARY  PROCEEDINGS. 

6.  Against  whom  may  a  petition  be  filed? 

A  petition  may  be  filed  against  any  natural  person  (except  a  wage- 
earner  or  farmer),  anv  unincorporated  company  and  any  corpora- 
tion engaged  principally  in  manufacturing,  trading,  printing,  pub- 
lishing, mining  or  mercantile  pursuits,  owing  debts  to  the  amount 
of  one  thousand  dollars  or  over,  §  4b,  who  is  insolvent  and  has 
committed  an  act  of  bankruptcy  within  four  months.  §  3b.  An 
act  of  bankruptcy  consists  in  (1)  conveying  or  concealing  property 
with  intent  to  hinder,  delay  or  defraud  creditors,  or  (2)  trans- 
ferring while  insolvent  property  to  one  or  more  creditors  with  in- 
tent to  prefer  them  over  other  creditors,  or  (3)  permitting  while 
insolvent  anv  creditor  to  obtain  a  preference  through  legal  pro- 
ceeding? and  not  having  at  least  five  days  before  the  sale  of  any 
property  affected  by  such  preference  vacated  or  discharged  such 
preference,  or  (4)  made  a  general  assignment  for  the  benefit  of 
his  creditors,  or  being  insolvent  applied  for  a  receiver  or  trustee 
for  his  property,  or  because  of  insolvency  a  receiver  has  been  nut 
in  charge  of  his  property,  or  (5)  admitted  in  writing  hi?  inability 
to  pay  his  debts  and  his  willingness  to  be  adjudged  a  bankrupt. 


28  QUESTIONS  AXD  ANSWERS. 

7.  A  judgment  is  entered  against  A.  without  his  "knowledge  or 
consent  and  he  fails  to  vacate  or  discharge  it  at  least  five  days  be- 
fore the  sale  of  the  property  but  without  any  intent  to  prefer  the 
creditor  obtaining  the  judgment.     Has  he  committed  an  act  of 
bankruptcy? 

Yes.  Mere  passive  nonresistance  is  sufficient  and  the  intent  of 
the  debtor  is  not  an  element.  Matter  of  Rung  Furn.  Co.,  14  Am. 
B.  R.  12  (C.  C.  A.  2d  Cir.) ;  Wilson  Bros.  v.  Kelson,  183  U.  S. 
191,  7  Am.  B.  R.  142.  The  rule  was  otherwise  under  the  law  of 
1867.  Wilson  v.  City  Bank,  17  Wall.  473. 

8.  Who  may  file  an  involuntary  petition? 

Three  or  more  creditors  who  have  provable  claims  amounting 
in  the  aggregate  to  $500  or  over,  or  if  all  the  creditors  are  less 
than  twelve  then  one  of  such  creditors  whose  claim  equals  such 
amount.  §  59b. 

IV.    PROVABLE  DEBTS. 

9.  A.  has  a  claim  against  B.  for  unliquidated  damages  resulting 
from  injury  to  his  property.    B.  is  adjudged  a  bankrupt. 

(a)  Can  A.  prove  his  claim  against  the  estate  and  receive  a  divi- 
dend thereon? 

(b)  Would  the  result  be  different  if  he  had  recovered  judgment 
on  his  claim  before  the  adjudication? 

(c)  Suppose  the  claim  were  one  for  conversion  of  his  property? 

(a)  No.     The  general  rule  under  previous  bankruptcy  acts  was 
that  liabilities  ex  delicto  were  not  provable  debts.     Section  63a 
gives  a  list  of  debts  which  may  be  proved.    Section  63b  states  that 
unliquidated  claims  may  upon  application  to  the  court  be  liqui- 
dated and  thereafter  proved  and   allowed.     It  was  thought  that 
par.  b  added  to  the  list  of  debts  provable. under  par.  a,  and  that 
under  it  debts  grounded  in  tort  might  be  liquidated  and  then 
proved.     Collier  on  Bankruptcy   (5th  ed.),  479. 

It  is  now  well  settled,  however,  that  such  is  not  the  effect  of 
par.  b,  but  that  its  only  purpose  is  to  permit  an  unliquidated  claim 
coming  within  the  provision  of  par.  a  to  be  liquidated.  Brown 
v.  United  Button  Co.,  17  Am.  B.  R.  565,  149  Fed.  48 ;  Dunbar  v. 
Dunbar,  190  U.  S.  340,  10  Am.  B.  R.  139. 

The  same  rule  of  course  applies  to  claims  for  damages  resulting 
from  injury  to  the  person  and  it  has  accordingly  been  held  that  a 
claim  for  damages  for  wrongfully  can<=insr  death  is  not  provable. 
Matter  of  X.  Y.  Tunnel  Co.,  20  Am.  B.  R.  25  (C.  C.  A.  2d  Cir.). 

(b)  Yes.     Section   63a    (1)    provides  for  the  proof  of  a  debt 
evidenced  by  a  judgment  whether  based  upon  an  action  in  contract 
or  tort. 

(c)  Since  in  conversion  the  plaintiff  may  waive  the  tort  and 
eue  in  assumpsit  a  claim  for  conversion  of  pronerty  is  a  provable 
debt  under  section  63a  (4)   which  authorizes  the  proof  of  a  debt 


BANKRUPTCY.  29 

"  founded  upon  an  open  account  or  upon  a  contract  express  or 
implied."  Crawford  v.  Burke,  12  Am.  B.  R.  659,  195  U.  S.  176. 

.  10.  A.  is  indorser  on  a  note  and  before  the  note  falls  due  is 
adjudged  a  bankrupt.  Is  his  liability  as  indorser  a  provable  debt 
against  his  estate? 

Yes.  It  was  at  first  held  that  since  the  liability  of  the  indorser 
was  contingent  merely  at  the  time  of  filing  of  the  bankruptcy  peti- 
tion it  was"  not  a  provable  debt  not  being  a  "  fixed  liability " 
*  *  *  "absolutely  owing  at  the  time  of  the  filing  of  the  peti- 
tion" under  section  63a  (1)  In  re  Schaefer,  5  Am.  B.  R.  92,  104 
Fed.  9T3. 

It  seems  now.  however,  to  be  well  settled  that  such  a  liability  is 
provable  under  section  63a  (4)  which  provides  for  the  proof  of 
claims  "  founded  upon  an  open  account  or  upon  a  contract  express 
or  implied."  In  re  Gerson,  6  Am.  B.  R.  11,  107  Fed.  897. 

11.  A.   has  a   claim  against  the   bankrupt  based  upon  a  note 
which  is  secured  by  indorsers  who  are  responsible.     Can  he  prove 
the  claim  and  receive  a  dividend  upon  the  full  amount? 

Yes.  Though  one  who  has  a  secured  claim  can  only  prove  it 
for  the  excess,  if  any,  of  the  claim  over  the  value  of  the  security, 
§  57e,  the  Bankruptcy  Act  defines  a  secured  creditor  as  one 
"  who  has  security  for  his  debt  upon  the  property  of  the  bankrupt." 
§  1  (23).  Though  his  claim  is  fully  secured  by  the  indorsements 
on  the  note  he  may  prove  and  receive  a  dividend  upon  the  full 
amount  since  the  security  is  not  upon  the  property  of  the  bankrupt. 
In  re  Xoyes  Bros->  127  Fed-  28G>  n  Am-  B-  K.  506  (C.  C.  A. 
1st  Cir.). 

V.  ELECTION  OF  TRUSTEE. 

12.  At  the  first  meeting  of  creditors  the  attorney  for  the  bank- 
rupt presents  proofs  of  claims  and  powers  of  attorney  from  a  ma- 
jority in  number  and  amount  of  the  creditors  whose  claims  have 
been  allowed  and  irho  are  represented  at  the  meeting  and  offers  to 
vote  them  for  the  election  of  B.  as  trustee.     Will  he  be  permitted 
to  vote  them,  and  if  so  will  the  election  of  B.  as  trustee  be  con- 
firmed by  the  Referee? 

The  act  provides  for  the  election  of  the  trustee  by  creditors  and 
the  courts  will  not  tolerate  any  attempt  on  the  part  of  the  bank- 
rupt to  control  the  election  and  thereby  secure  a  trustee  favorable 
io  his  interests.  If  it  appears  that  claims  presented  have  been 
solicited  by  the  bankrupt  and  are  voted  in  his  interest,  the  Referee 
will  either  refuse  to  permit  them  to  vote  or  refuse  to  confirm  the 
election.  In  re  Dayville  Woolen  Co.,  114  Fed.  674,  8  Am.  B.  R.  85. 

A?  in  such  case  the  interests  of  the  creditors  and  of  the  bank- 
rupt are  diverse  the  attornev  for  the  bankrupt  will  not  ordinarily 
be  allowed  to  represent  creditors  or  to  vote  their  claims. 


30  QUESTIONS  AND  ANSWERS.? 

VI.  TITLE  OF  TRUSTEE. 

13.  A.  sells  goods  to  B.  upon  conditional  bill  of  sale  reserving 
title  in  himself  until  goods  are  paid  for.      The  bill  of  sale  is  not 
recorded  as  required  by  statute  of  the  state  where  sale  is  made. 
B.  is  adjudged  a  bankrupt,  the  goods  being  in  his  possession  and 
tin  paid  for.     Does  his  trustee  take  title  to  them? 

The  general  rule  is  that  the  trustee  takes  the  property  of  the 
bankrupt,  in  cases  unaffected  by  fraud,  in  the  same  •  plight  and 
condition  that  the  bankrupt  himself  held  it  and  subject  to  all  the 
equities  impressed  upon  it  in  the  hands  of  the  bankrupt.  Where 
therefore  the  statute  (as  in  New  York)  provided  that  an  unre- 
corded bill  of  sale  was  void  only  as  against  subsequent  purchasers 
or  pledgees  or  mortgagees  in  good  faith  it  was  held  good  as  against 
the  trustee  in  bankruptcy.  Hewitt  Tr.  v.  Berlin  Machine  Works, 
194  U.  S.  296,  11  Am.  B.  E.  709. 

The  trustee,  however,  represents  the  general  creditors  of  the 
estate,  and  where  the  language  of  the  statute  is  such  that  an  un- 
recorded bill  of  sale  is  invalid  as  against  creditors  it  has  been 
held  to  be  invalid  as  against  the  trustee  in  bankruptcy.  In  re 
Yukon  Woolen  Co.,  2  Am.  B.  E.  805,  96  Fed.  326;  Bradley  v.  Mc- 
Afee, 17  Am.  B.  E.  495. 

In  Ohio  an  unrecorded  bill  of  sale  is  void  as  against  creditors,, 
but  the  State  court  has  held  that  only  creditors  who  have  taken 
steps  to  fasten  upon  the  property  for  the  payment  of  their  debts 
can  take  advantage  of  the  statute.  The  U.  S.  Supreme  Court 
adopting  this  construction  of  the  statute  decided  that  when  there 
are  no  creditors  who  have  attached  the  property  the  trustee  takes 
no  title  to  it,  holding  that  the  adjudication  does  not  operate  as  an 
attachment.  York  Mfg.  Co.  v.  Cassel,  201  U.  S.  344,  15  Am.  B. 
E.  633. 

If,  however,  prior  to  the  bankruptcy  a  creditor  had  attached  the 
property  so  that  under  the  statute  he  was  in  a  position  to  attack 
the  conditional  sale,  although  his  attachment  was  vacated  by  the 
adjudication,  the  trustee  under  section  67  of  the  act  would  lie  sub- 
rogated  to  his  rights'  and  entitled  to  the  proceeds  of  the  sale  of  the 
property  to  the  extent  of  the  claim  of  the  attaching  creditor.  In 
re  N.  Y.  Econom.  Printing  Co.,  6  Am.  B.  E.  '615,  110  Fed.  514 
(C.  C.  A.  2d  Cir.) ;  First  Nat.  Bank  v.  Staake,  15  Am.  B.  E.  639, 
202  U.  S.'  141. 

14.  A.  is  induced  to  sell  goods  to  B.  by  materially  false  repre- 
sentations.    B.  having  the  goods  in  his  possession  is  adjudged  a 
bankrupt.     Can  A.  recover  the  goods,  and  if  so  how? 

False  representation?  made  as  a  basis  for  credit  entitle  the 
seller  to  reclaim  the  goods,  and  since  the  trustee  has  no  better  title 
than  the  bankrupt  had  he  takes  the  goods  affected  with  tbe  fraud 
of  the  bankrupt.  The  property  being  in  the  custody  of  the  Bank- 
ruptcy Court  is  not  subject  to  replevin  in  the  State  court.  In  re 


BANKRUPTCY.  31 

Eussell  and  Birkett,  3  Am.  B.  R.  658,  101  Fed.  248 ;  In  re  Mertens, 
12  Am.  B.  R.  698,  131  Fed.  507. 

The  creditor  may,  however,  file  in  the  Bankruptcy  Court  his 
petition  to  reclaim  the  goods  upon  a  rescission  of  the  sale  and  upon 
proof  of  his  case  obtain  an  order  that  the  trustee  surrender  pos- 
session of  them.  In  re  Weil,  7  Am.  B.  R.  90,  111  Fed.  897. 

Property  consigned  to  the  bankrupt  may  be  recovered  in  a 
similar  procedure. 

15.  A.  mingles  a  trust  fund  in  one  bank  deposit  with  moneys 
of  his  own  and  draws  upon  the  deposit  from  time  to  time:    Upon 
his  adjudication  as  a  bankrupt  can  the  real  owner  of  the  fund  re- 
cover it  in  preference  to  other  creditors  of  the  estate? 

The  well-established  rule  in  equity  is  that  the  owner  of  a  trust 
fund  may  follow  it  into  whatever  form  it  may  have  been  converted 
and  though  in  the  case  of  money  it  has  been  mingled  in  one  mass 
with  other  money  of  the  trustee.  In  re  Hallet's  Estate,  13  Ch. 
Div.  696,  36  Eng.  Eep.  779.. 

The  rule  is  that  any  drafts  npon  the  deposit  thus  mingled  are 
presumed  to  have  been  made  against  the  trustee's  own  share  of 
the  deposit  and  that  what  is  left  belongs  in  equity  to  the  cestui 
yue  trust.  But  the  mere  misapplication  of  trust  funds  does  not 
give  the  defrauded  beneficiary  a  general  priority  over  other  cred- 
itors of  the  trustee.  The  trust  fund  must  be  distinctly  traced  into 
the  estate  of  the  bankrupt  and  be  shown  to  exist  there  in  some 
shape  at  the  date  of  the  bankruptcy.  If  the  fund  cannot  be  shown 
to  have  been  deposited  in  the  bankrupt's  bank  account  or  invested 
in  some  specific  property  which  is  a  part  of  his  estate,  or  if  having 
been  so  deposited  the  bankrupt  has  drawn  against  it  so  that  neither 
Ids  own  share  of  the  deposit  or  the  trust  fund  is  still  in  existence, 
then  the  beneficiary  must  share  pari  passu  with  the  general  cred- 
itors of  the  estate.  In  re  Mulligan,  9  Am.  B.  R.  8,  116  Fed.  715. 

The  burden  of  tracing  the  trust  fund  into  the  property  claimed 
rests  upon  the  beneficiary  though  he  may  be  assisted  in  bearing 
it  by  the  legal  presumption  above  referred  to  concerning  the  joint 
account.  In  re  Marsh,  8  Am.  B.  R.  576,  116  Fed.  396. 

VII.  EXEMPTIONS. 

16.  What  property  may  the  bankrupt  retain  as  exempt? 

The  Bankruptcy  Act  do.es  not  grant  any  specific  exemptions  to 
the  bankrupt,  but  provides  that  he  shall  be  entitled  to  the  exemp- 
tions allowed  by  the  laws  of  the  State  of  his  domicile.  §  6. 

They  should  be  claimed  by  the  bankrupt  in  Schedule  B  (5) 
attached  to  his  petition.  It  is  the  duty  of  the  trustee  within 
twenty  day?  of  his  appointment  to  set  out  to  the  bankrupt  his 
exemptions,  and  anv  creditor  may  take  exception  to  hi«  action 
within  twenty  days  after  the  report  is  filed.  Gen.  Ord.  XVII. 


32  QUESTIONS  AND  ANSWERS. 

17.  A.  files  a  petition  in  bankruptcy  and  schedules  a  life  in- 
surance policy  which  has  a  cash  surrender  value  payable  to  him- 
self. By  the  laws  of  the  State  of  his  domicile  such  insurance  is 
exempt.  Is  the  trustee  entitled  to  the  cash  surrender  value  of  the 
policy  t 

"While  section  6  of  the  act  adopts  for  the  purpose  of  the  bank- 
ruptcy proceedings  the  exemptions  allowed  by  the  laws  of  the 
several  States,  section  70a  of  the  act  provides  that  when  a  bankrupt 
has  an  insurance  policy  which  has  a  cash  surrender  value  payable 
to  himself,  he  may  by  paying  over  the  amount  of  such  cash  sur- 
render yalue  to  his  trustee  hold  the  policy  free  from  the  claims  of 
his  creditors.  It  was  held  in  In  re  Scheld,  5  Am.  B.  B.  102,  104 
Fed.  870,  that  the  effect  of  section  70a  was  to  limit  the  broad 
terms  of  section  6,  adopting  the  State  exemption  laws  and  that  the 
trustee  was  entitled  to  the  cash  surrender  value.  The  contrary  doc- 
trine has,  however,  been  finally  adopted  by  the  Supreme  Court  and 
the  bankrupt  is  entitled  to  the  exemption.  Holden  v.  Stratton, 
198  U.  S.  202,  14  Am.  B.  E.  94. 

VIII.  EXAMINATION  OF  BANKRUPT. 

•19.  May  the  bankrupt  upon  his  examination  be  compelled  to 
answer  a  question  the  answer  to  which  would  tend  to  incriminate 
him  f 

No.  Section  7a  provides  that  "  no  testimony  given  by  the  bank- 
rupt shall  be  offered  in  evidence  against  him  in  any  criminal  pro- 
ceeding." It  has  been  held,  however,  that  this  does  not  grant  him 
the  immunity  contemplated  by  section  5  of  the  Constitution  of  the 
United  States.  Counselman  v.  Hitchcock,  142  U.  S.  565;  In  re 
Nachman,  114  Fed.  995,  8  Am.  B.  E.  180;  In  re  Bosser,  96  Fed: 
305,  2  Am.  B.  E.  755;  In  re  Feldstein,  103  Fed.  269,  4  Am.  B. 
E.  321. 

The  refusal  of  the  bankrupt,  however,  to  answer  any  material 
question  approved  by  the  court  is  by  the  amendment  of  1903,  §  14b 
(6),  made  a  ground  of  objection  to  his  discharge. 

IX.  PREFERENCES  AND  LIENS. 

20.  A.,  being  insolvent  and  indebted  to  B.,  gives  him  a  mort- 
gage upon  his  property  in  part  to  secure  the  existing  indebtedness 
and  in  part  to  secure  a  loan  made  at  the  time  the  mortgage  is 
given.  Within  four  months  he  is  adjudged  a  bankrupt.  Under 
what  circumstances  would  the  mortgage' be  held  invalid,  and  if  so 
whether  in  whole  or  in  part? 

The  mortgage  is  good  in  any  event  to  the  extent  of  the  loan 
made  at  the  time  it  was  given  since  to  that  extent  the  mortgagee 
gets  no  preference  over  other  creditors.  If  at  the  time  the  mort- 
gage was  given  the  mortgagee  had  reasonable  ground  for  believing 
that  it  was  intended  to  give  him  a  preference  the  mortgage  is 


BANKRUPTCY.  33 

invalid  to  the  extent  of  the  pre-existing  indebtedness.  City  Nat. 
Bank  v.  Bruce,  109  Fed.  69,  6  Am.  B.  E.  311  (C.  C.  A.  4th  Cir.) ; 
In  re  Furse  &  Co.,  127  Fed.  690,  11  Am.  B.  E.  733  (C.  C.  A.  4th 
Cir.)  ;  Grant  v.  Nat.  Bank,  97  U.  S.  80;  Stuckey  v.  Sav.  Bank,  108 
IT.  S.  74. 

The  question  of  whether  the  mortgagee  has  reasonable  ground 
for  believing  that  it  was  intended  to  prefer  him  is  one  of  fact  for 
the  jury.  This  includes  reasonable  ground  for  believing  that  debtor 
is  insolvent  and  that  he  will  obtain  a  larger  percentage  of  his  debt 
than  other  creditors  in  his  class.  The  intent  of  the  debtor  is  im- 
material. Loveland  on  Bankruptcy  (3d  ed.),  561. 

21.  A.  brings  suit  against  B.  in  which  he  attaches  his  property 
and  in  due  course  obtains  judgment.      Within  four  months  after 
the  entering  of  the  judgment  but  more  than  four  months  after  the 
attachment,  B.  is  adjudged  a  bankrupt.     Does  the  adjudication 
dissolve  the  lien  of  the  attachment? 

No.  Section  67f  provides  that  the  adjudication  dissolves  "all 
levies,  judgments,  attachments  or  other  liens  obtained  through 
legal  proceedings"  within  four  months.  Although  the  judgment 
was  obtained  within  four  months  of  the  bankruptcy,  since  it  was 
a  judgment  in  enforcement  of  pre-existing  lien  which  was  not  dis- 
solved, having  been  in  existence  more  than  four  months,  it  is  not 
affected  by  the  provision  of  this  section  which  refers  to  judgments 
creating  liens.  Metcalf  v.  Barker,  187  TJ.  S.  165,  9  Am.  B.  E. 
36;  In  re  Beaver  Coal  Co.,  110  Fed.  630,  6  Am.  B.  E.  404;  In 
re  Blair,  108  Fed.  529,  6  Am.  B.  E.  206;  In  re  Snell,  125  Fed. 
154,  11  Am.  B.  E.  35. 

22.  7s  a  mechanic's  lien  filed  within  four  months  of  'bankruptcy 
proceedings  valid  as  against  the  trustee? 

Only  liens  obtained  through  legal  proceedings  are  invalidated  by 
section  67c  and  f.  A  mechanic's  lien  although  filed  within  four 
months  of  bankruptcy  is  therefore  valid  and  has  been  so  held  even 
though  it  was  inchoate  at  the  time  of  the  adjudication  and  further 
action  was  necessary  after  that  date  in  order  to  perfect  it.  In  re 
Grissler,  136  Fed.  754,  13  Am.  B.  E.  508  (C.  C.  A.  2d  Cir.),  over- 
ruling In  re  Eoeber,  121  Fed.  449,  9  Am.  B.  E.  303;  In  re  Georgia 
Handle  Co.,  109  Fed.  632,  6  Am.  B.  E.  472  (C.  C.  A.  5th  Cir.)  ; 
In  re  Emslie,  4  Am.  B.  E.  126,  102  Fed.  291  (C.  C.  A.  2d  Cir.). 

X.  SALE  OF  ASSETS. 

23.  The  property  of  a  b-anJcrupt  is  subject  to  liens  which  maJcc 
it  difficult  for  the  trustee  to  obtain  anything  for  the  equity  if  the 
property  is  sold  subject  to  liens.     Can  he  sell  it  free  and  clear  of 
the  liens? 

No  specific  authority  is  given  in  the  Act  of  1898  to  order  a  sale 
of  property  free  of  incumbrances.,  but  it  is  well  settled  that  the 

3 


34  QUESTIONS  AND  ANSWERS. 

court  has  power  to  make  such  an  order,  in  which  case  the  lien  is 
transferred  from  the  property  to  the  fund  produced  by  its  sale, 
and  the  Bankruptcy  Court  may  determine  the  rights  of  the  lien 
claimants.  Loveland  on  Bankruptcy  (3d  ed.),  742;  Collier  on 
Bankruptcy  (5th  ed.),  570;  In  re  Granite  City  Bank,  137  Fed. 
818,  14  Am.  B.  R.  44)4  (C.  C.  A.  8th  Cir.) ;  In  re  Union  Trust 
Co.,  122  Fed.  937,  9  Am.  B.  R.  767  (C.  C.  A.  1st  Cir.)  ;  Chauncey 
v.  Dyke  Bros.,  119  Fed.  1,  9  Am.  B.  R.  444  (C.  C.  A.  8th  Cir.) ; 
Carroll  Co.  v.  Young,  119  Fed.  576,  9  Am.  B.  R.  643  (C.  C.  A. 
3d  Cir.). 

XI.  DISTRIBUTION  OF  THE  ESTATE. 

a.     Priority  Claims. 

24.  Employee   of  bankrupt  presented  claim   for  wages  earned 
more  than  three  months  before  the  bankruptcy.    The  State  statute 
allowed  priority  to  all  wages  earned  within  one  year.     T>Yas  the 
claim  entitled  to  priority? 

No.  Section  64b  (4)  allows  priority  to  wages  earned  within 
three  months  of  the  bankruptcy  proceedings  and  section  64b  (5) 
allows  priority  to  "  debts  owing  to  any  person  who  by  the  laws  of 
the  State  or  the  United  States  is  entitled  to  priority."  Since  clause 
4  contains  a  specific  provision  regarding  wages  it  is  the  exclusive 
rule  as  to  their  priority  in  spite  of  the  different  rule  stated  in  the 
general  provision  of  clause  5.  In  re  Slomka.  122  Fed.  630.  9  Am. 
B.  R.  635  (C.  C.  A.  2d  Cir.)  ;  In  re  Rouse,  Hazard  &  Co.,  91  Fed. 
96,  1  Am.  B.  R.  234  (C.  C.  A.  7th  Cir.). 

b.     Payment  of  Dividends. 

25.  A.  presents  a  claim  against  a  bankrupt  estate  witliin   one 
year  after  the  adjudication  but  subsequent  to  the  declaration  of  a 
dividend.     Can  he  share  in  the  dividend?     What  if  the  final  divi- 
dend has  been  declared  and  the  estate  closed? 

The  Bankruptcy  Act  fixes  no  definite  limitation  of  time  for  the 
presentation  of  claims  against  estates  except  the  negative  one  that 
no  claims  may  be  proved  subsequent  to  one  year  after  the  ad- 
judication. §  57n.  This  does  not  mean,  however,  that  creditors 
have  a  year  in  which  to  present  their  proofs  and  share  in  dividends. 
Trustees  are  required  to  close  up  estates  "  as  expeditiouslv  as  in- 
compatible with  the  best  interests  of  the  parties  in  interest." 
§  47  (2).  They  may  pay  out  all  the  funds  in  their  hands  and 
close  the  estate  and  creditors  subsequently  presenting  claims,  al- 
though within  the  year,  will  receive  nothing.  In  re  Stein,  94  Fed. 
124,  1  Am.  B.  R.  662. 

The  proof  of  a  claim  within  the  year  and  before  the  estato  is 
closed  but  subsequent  to  the  payment  of  a  dividend  does  n^«t  di  — 
turb  that  dividend  nor  affect  the  right?  of  the  creditors  who  have 
received  it,  but  such  claims  will  be  entitled  to  "  dividends  equal 


BANKRUPTCY.  35 

in  amount  to  those  already  received  by  the  other  creditors,  if  the 
estate  equals  so  much,  before  such  other  creditors  are  paid  any 
further  dividends."  §  Goc. 

Creditors  who  delay  presenting  claims  until  after  the  payment 
of  dividends  therefore  take  their  chances  of  securing  a  shars  in 
such  dividends,  but  since  the  amendment  of  1903  requiring  that 
"  the  first  dividend  shall  not  include  more  than  fifty  per  centum 
of  the  money  of  the  Estate  in  excess  of  the  amount  necessary  to 
]>;iv  the  debts  which  have  priority  and  such  claims  as  probably 
Avill  be  allowed"  the  cases  will  be  rare  in  which  they  will  not 
receive  the  same  dividends  as  creditors  proving  their  claims  before 
the  first  dividend.  §  65b. 

XII.  COMPOSITIONS. 

26.  In  what  ways  may  a  bankrupt  secure  the  dismissal  of  the 
proceedings  and  the  revesting  of  the  title  to  his  property  in  his 
own  name? 

1.  If  he  can  secure  the  signature  of  all  his  creditors  _to  a  state- 
ment that  their  claims  are  satisfied  he  may  then  petition  for  a 
dismissal  of  the  proceedings  upon  payment  of  the  expense  to  date. 
Notice  of  such  a  petition  must  be  given  to  all  creditors  unless  it 
is  waived  by  them.     §  59g. 

2.  He  may  at  any  time  after  he  has  been  examined  make  a  com- 
position offer  to  his  creditors.     §  12a.     If  accepted  in  writing  by 
a  majority  in  number  and  amount  of  creditors  whose  claims  have 
been  allowed  he  may  file  an  application  for  its  confirmation  upon 
depositing  in  court  the  consideiation  and  a  sum  sufficient  to  pay 
the  cost  of  the  proceedings  and  the  debts  which  have  priority.  The 
composition  will  be  comfirmed  if   (1)   it  is  for  the  best  interests 
of  creditors,   (2)  the  bankrupt  has  not  been  guilty  of  any  of  the 
acts  or  failed  to  perform  any  of  the  duties  which  would  be  a  bar 
to  his  discharge,  and  (3)  the  offer  aand  its  acceptance  are  in  good 
faith.     §  12b,  d. 

The  confirmation  of  a  composition  has  the  effect  of  revesting 
in  the  bankrupt  the  title  to  his  property,  §§  70f,  21g,  and  of  dis- 
charging him  from  his  debts  other  than  those  agreed  to  be  paid  by 
the  terms  of  the  composition  offer  and  those  not  affected  by  a 
discharge.  §  14c. 

XIII.  DISCHARGE. 

a.     Grounds  of  Opposition. 

27.  For  what  reasons  may  a  discharge  l)e  refused  the  bankrupt? 

The  bankrupt  is  entitled  to  a  discharge  unless  he  has  (1)  com- 
mitted an  offense  punishable  by  imprisonment  as  provided  in  the 
r.r-t.  which  may  consist  in  his  having  (a)  concealed  from  his 
trustee  any  property  belonging  to  his  estate  or  (b)  made  a  false 
oath  or  account  in  the  bankruptcy  proceeding. 


36  QUESTIONS  AND  ANSWERS. 

(2)  With  intent  to  conceal  his  financial  condition,  destroyed, 
concealed  or  failed  to  keep  books  of  account  or  records  from  which 
such  condition  might  be  ascertained. 

(3)  Obtained  property  on  credit  from  any  person  upon  a  mate- 
rially false  statement  in  writing  made  to  such  person  for  the  pur- 
pose of  obtaining  such  property  on  credit. 

(4)  At  any  time  subsequent  to  the  first  day  of  the  four  months 
immediately  preceding  the  filing  of  the  petition,  transferred,  re- 
moved, destroyed  or  concealed  any  of  his  property  with  intent  to 
hinder,  delay  or  defraud  his  creditors. 

(5)  In  voluntary  proceedings  been  granted  a  discharge  in  bank- 
ruptcy within  six  years. 

(6)  In  the  course  of  proceedings  in  bankruptcy  refused  to  obey 
any  lawful  order  of  or  to  answer  any  material  question  approved 
by" the  court.     §§  14b,  29. 

28.  A.  testifies  falsely  upon  his  examination  at  the  first  meeting 
of  creditors.     Can  this  be  made  the  ground  for  an  objection  to 
his  discharge? 

Yes.  Section  7  provides  that  no  testimony  given  by  the  bank- 
rupt upon  such  examination  shall  be  offered  in  evidence  against 
him  in  any  criminal  proceeding  and  for  that  reason  some  cases 
have  held  that  such  testimony  could  not  be  used  against  him  upon 
his  application  for  a  discharge.  In  re  Marx,  4  Am.  B.  E.  521,  102 
Fed.  676. 

It  is  now  settled,  however,  that  the  proceeding  upon  the  appli- 
cation for  a  discharge  is  not  a  criminal  proceeding  and  that  a  dis- 
charge may  be  denied  the  bankrupt  for  false  testimony  upon  his 
examination.  In  re  Dow,  5  Am.  B.  R.  400,  105  Fed.  889;  In  re 
Gaylord,  7  Am.  B.  R.  1,  112  Fed.  668  (C.  C.  A.  2d  Cir.). 

29.  A.  is  adjudged  a  bankrupt  but  fails  to  file  a  petition  for 
discharge  within  one  year.     May  he  file  a  second  petition  and  re- 
ceive in  that  proceeding  a  discharge  from  debts  scheduled  in  the 
first  proceeding? 

No.  The  record  of  his  failure  to  make  the  application  in  that 
proceeding  was  in  effect  a  judgment  by  default  and  renders  the 
issue  as  conclusively  res  adjudicata  as  a  judgment  upon  a  trial. 
In  re  Bramlett,  161  Fed.  588,  20  Am.-B.  R.  402;  Kuntz  v.  Young, 
12  Am.  B.  R,  505,  131  Fed.  719  (C.  C.  A.  8th  Cir). 

b.     Debts  Affected   by  a  Discharge. 

30.  Is  a  bankrupt  discharged  from  an  unliquidated  claim   for 
damages  for  tort? 

Xo.  because  such  claim  is  not  a  provable  debt  (see  Question  9) 
and  the  bankrupt  can  be  discharged  only  from  provable  debt?. 
§  17.  If.  however,  the  claim  has  been  reduced  to  judgment  prior 
to  the  adjudication  it  becomes  provable.  §  63a  (1).  It  is  then 


BANKRUPTCY.  37 

dischargeable  unless  it  belongs  in  the  class  of  debts  not  affected 
by  a  discharge,  that  is,  is  either  a  liability  for  obtaining  property 
by  false  pretenses  or  false  representations,  or  for  a  wilful  and 
malicious  injury  to  person  or  property,  or  for  alimony,  or  for 
maintenance  or  support  of  wife  or  child,  or  for  seduction  or  crim- 
inal conversation,  or  was  created  by  the  fraud,  embezzlement,  mis- 
appropriation, or  defalcation  of  the  bankrupt  while  acting  as  an 
officer  or  in  any  fiduciary  capacity.  §  17.  Matter  of  N.  Y.  Tunnel 
Co.,  20  Am.  B.  H.  25  (C.  C.  A.  2d  Cir.). 

31.  Does  a  bankrupt  get  a  discharge  from  a  debt  which  he  has 
failed  to  place  in  his  schedule? 

Xo,  unless  the  creditor  has  had  actual  knowledge  of  the  pro- 
ceedings. §  17  (3). 

The  bankrupt  may,  however,  amend  his  schedules  at  any  time. 
Gen.  Ord.  XL 

32.  A.  after  being  adjudged  a  bankrupt  promises  a  creditor  that 
he  will  see  that  he  is  paid.     He  subsequently  gets  a  discharge. 
Can  the  creditor  collect  the  debt? 

Yes,  because  the  discharge  does  not  extinguish  the  debt;  the 
moral  obligation  remains  and  is  a  sufficient  consideration  for  the 
new  promise.  Dusenberry  v.  Hoyl:,  53  N".  Y.  521 ;  Mutual  Re- 
serve,  &c.  v.  Beatty,  2  .m.  B.  R.  244,  93  Fed.  747;  In  re  Mem- 
man,  44  Conn.  587. 

33.  A.,  as  agent  for  B.,  converts  to  his  own  use  the  proceeds  of 
the  sale  of  B's  property.    Can  lie  obtain  a  discharge  in  bankruptcy 
from  A.'s  claim  against  him? 

Yes.  The  claim  is  a  provable  one  (see  Question  9,  c)  and  is 
not  covered  by  the  enumeration  in  section  17  of  debts  not  affected 
by  a  discharge  which  include  those  created  by  "  fraud,  embezzle- 
ment, misappropriation  or  defalcation  while  acting  as  an  officer  or 
in  a  fiduciary  capacity  "  since  this  only  applies  to  technical  trusts 
and  acts  of  an  official  character  or  in  a  fiduciary  opacity.  Crawford 
v.  Burke,  195  IT.  S.  176,  12  Am.  D.  R.  659 ;  Hennequin  v.  Clewes, 
111  U.  S.  676;  Palmer  v.  Hussey,  119  U.  S.  96;  In  re  Hale,  161 
Fed.  387. 

XIV.  SUMMARY  PROCEEDINGS. 

34.  A.  is  adjudged  a  bankrupt.      His  trustee  discovers  prop- 
erty of  A.'s  in  the  possession  of  B.,  who  refuses  to  surrender  it. 
Bi/  what  process  may  the  trustee  obtain  possession  of  the  property? 

If  B.  is  an  "adverse  claimant."  that  is  one  claiming  title  to  the 
propertv  in  his  own  right  and  not  merely  the  agent  of  the  bank- 
rupt, the  trustee  must  brine  a  plenary  suit  to  recover  the  prop- 
erty. Bardes  v.  Bank,  178  U.  S.  524,  4  Am.  B.  R.  163. 


38  QUESTIONS  AXD  ANSWERS. 

Prior  to  the  amendment  of  1903  such  suit  under  the  decision  in 
Bardes  v.  Bank  could  not  be  brought  in  the  U.  S.  District  Court 
except  with  the  consent  of  the  defendant  but  must  be  brought  in 
the  court  where  the  bankrupt  might  have  brought  it  if  bankruptcy 
proceedings  had  not  been  instituted.  By  the  amendment  of  1903 
such  suit  may  now  be  brought  in  the  District  Court.  §§  23b,  60b, 
67e.  If,  however,  B,  is  not  an  "  adverse  claimant "  but  is  merely 
holding  the  property  for  the  bankrupt  he  may  be  cited  in  in  the 
bankruptcy  proceedings  and  summarily  ordered  to  surrender  pos- 
session to  the  trustee.  White  v.  Schloerb,  178  U.  S.  542,  4  Am. 
B.  R.  178;  Bryan  v.  Bernheimer,  181  U.  S.  188,  5  Am.  B.  R.  623; 
Mueller  v.  Nugent,  184  U.  S.  1,  7  Am.  B.  R.  224. 

In  Bryan  v.  Bernheimer,  upon  a  sale  of  goods  by  a  general  as- 
signee after  the  filing  of  a  petition  in  bankruptcy,  the  vendee  who 
bought  with  knowledge  of  'the  petition,  was  held  amenable  to  sum- 
mary process,  as  was  the  bankrupt's  son  to  whom  he  had  delivered 
a  large  amount  of  property  just  prior  to  the  bankruptcy  in  Mueller 
v.  Nugent. 

The  Bankruptcy  Court  has  the  power  in  any  particular  case  to 
ascertain  whether  the  claim  asserted  is  an  adverse  one  existing  at 
the  time  the  petition  was  filed,  and  according  to  the  conclusion 
reached  the  court  will  retain  jurisdiction  or  decline  to  adjudicate 
the  merits  in  the  summary  proceeding.  Louisville  Trust  Co.  v. 
Comingor,  184  U.  S.  18,  7  Am.  B.  R.  421;  Matter  of  Friedman, 
20  Am.  B.  R.  37  (C.  C.  A.  2d  Cir.). 

XV.  CONTEMPT  PROCEEDINGS. 

35.  Bankrupt  has  money  or  property  which  he  refuses  to  de- 
liver to  the  trustee.     How  may  he  be  compelled  to  do  so? 

It  is  the  bankrupt's  duty  to  obey  all  lawful  orders  of  the  court. 
§  41.  If  the  court  is  satisfied  that  he  has  in  his  possession  prop- 
erty belonging  to  his  estate,  it  may  order  him  to  surrender  it  and 
upon  his  failure  to  do  so  may  commit  him  for  contempt.  Schweer 
v.  Brown,  130  Fed.  328.  12  Am.  B.  R.  178  (C.  C.  A.  8th  Cir.). 

Before  he  can  be  punished  for  contempt,  however,  he  must  have 
notice  and  an  opportunity  to  show  cause  why  he  should  not  com- 
ply with  the  order.  In  re  Cole,  163  Fed.  180  (C.  C.  A.  1st  Cir.)  ; 
In  re  Rosser,  101  Fed.  562,  4  Am.  B.  R.  153  (C.  C.  A.  8th  Cir.). 

Such  commitment  does  not  violate  a  constitutional  prohibition 
against  imprisonment  for  debt.  In  re  Anderson,  4  Am.  B.  R.  640, 
103  Fed.  854. 

XVI.  APPELLATE  PROCEEDINGS. 

36.  How  may  decisions  of  the  bankruptcy  courts  be  reviewed? 

Anv  ruling  or  order  of  a  referee  may  he  taken  to  the  District 
Court  by  a  petition  for  review  filed  within  a  reasonable  time. 
§39  (5).  Gen.  Ord.  XXVII. 


BANKRUPTCY.  39 

There  are  three  methods  of  reviewing  a  decision  of  the  District 
Court  sitting  in  Bankruptcy. 

1.  A  final  judgment  in  controversies  arising  in  bankruptcy  pro- 
ceedings may  be  reviewed  on  writ  of  error  or  appeal  by  the  Circuit 
Court  of  Appeals  as  in  other  cases.     §  24a.     Such  appeal  may  be 
taken  within  six  months. 

2.  Any  order  or  decree  final  or  interlocutory  in  a  proceeding  in 
bankruptcy  may  be  superintended  and  revised  in  matters  of  law 
only  on  petition  for  review  by  the  Circuit  Court  of  Appeals.    §  24b. 

Xo  time  is  fixed  within  which  such  petition  must  be  filed.  It 
must  be  made  within  a  reasonable  time.  By  rule  in  the  Second 
Circuit  such  petition  must  be  filed  within  ten  days. 

3.  A  judgment  in  bankruptcy  proceedings  may  be  reviewed  on 
appeal  as  in  equity  to  the  Circuit  Court  of  Appeals  in  the  follow- 
ing classes  of  cases  only:     Judgments  adjudging  or  refusing  to 
adjudge  the  defendant  a  bankrupt;  granting  or  denying  a  dis- 
charge; allowing  or  rejecting  a  claim  of  $500  or  over.     §  25a. 
Such  appeal  must  be  taken  within  ten  days. 

A  sharp  distinction  has  been  drawn  by  the  courts  between  "  con- 
troversies arising  in  bankruptcy  proceedings "  which  may  be  re- 
viewed by  writ  of  error  or  appeal,  and  rulings  in  bankruptcy  pro- 
ceedings which  may  be  reviewed  as  to  questions  of  law  upon  a 
petition  to  revise,  the  latter  being  confined  to  questions  arising 
in  the  administration  of  estates  in  bankruptcy  proper,  the  former 
to  controversies  arising  outside  of  the  bankruptcy  proceedings 
proper.  In  re  Mueller,  135  Fed.  711,  14  Am.  B.  K.  256  (C.  C. 
A.  6th  Cir.). 

If  in  doubt  as  to  whether  a  case  is  "  a  controversy  arising  in 
bankruptcy  "  or  a  proceeding  in  bankruptcy  proper  the  safe  prac- 
tice is  to  take  an  appeal  and  also  file  a  petition  to  revise.  In  re 
Worcester  County,  102  Fed.  808,  4  Am.  B.  E.  496  (C.  C.  A.  1st 
Cir.). 


QUESTIONS  AND  ANSWERS. 


BILLS  AND  XOTES.* 


I.     IN  GENERAL. 

1.  What  is  "  negotiable  paper/'  and  how  does  it  differ  from 
ordinary  choses  in  action? 

The  term  "  negotiable  "  is  applied  to  a  contract,  the  right  of  ac- 
tion on  which  is  transferable  by  indorsement  or  delivery,  so  that 
the  one  taking  it  can  sue  in  his  own  name.  Bouv.  Law  Diet.  The 
prime  distinction  between  such  contracts  and  ordinary  contracts- 
is  this:  When  an  ordinary  chose  in  action  is  assigned,  the  assignee 
stands  exactly  in  the  shoes  of  his  assignor  and  is  subject  to  any 
defenses  which  were  available  to  the  other  contracting  party  against 
the  assignor;  when,  on  the  other  hand,  a  negotiable  contract  is 
transferred  under  certain  conditions  (explained  infra),  the  trans- 
feree can  recover  in  spite  of  the  existence  of  such  defenses.  Bishop 
on  Contracts,  §§  1179,  1180,  1189;  1  Parsons  on  Contracts,  227;  1 
Daniel,  Neg.  Inst.,  §  1. 

2.  What  are  the  formal  requisites  of  a  bill  of  exchange  or 
promissory  note? 

They  are  as  follows:  (a)  A  promise  to  pay,  if  a  note,  or  an  order 
on  a  third  person,  if  a  bill.  If  in  the  form  of  a  request  or  a  mere 
authority,  it  is  not  a  bill.  King  v.  Ellor,  1  Leach,  C.  L.  323; 
Little  v.  Slackford,  M.  &  M.  171.  So  an  "  I.  0.  U,"  or  "  Due 
John  Smith,  $10.00,''  is  not  a  negotiable  instrument,  but  only 
evidence  of  an  indebtedness.  Currier  v.  Lockwood,  40  Conn.  349; 
Smith  v.  Allen,  5  Day  (Conn.),  337. 

(b)  The  order  or  promise  must  be  absolute  and  unconditional. 
Thus,  "  Pay  X.  $10.00  out  of  my  growing  subsistence,"  is  bad  as 
a  bill,  because  dependent  on  a  certain  fund.     Josselyn  v.  Lacier,  10 
Mod.  Rep.  294,  316. 

"  I  promise  to  pay  X.,  or  order,  $100.00;  and  when  that  sum 
is  paid  to  X.,  this  note  is  to  be  given  up  to  me."  This  condition 
restricts  the  negotiability  and  it  is  not  a  note.  Hubbard  v.  Mosely, 
11  Gray,  170. 

(c)  It  must  be  payable  in  money,  i.  e.,  in  legal  tender,  and  not  in 
merchandise  or  the  like.     Foreign  money  is  a  commodity.     See 
Chrysler  v.  Renois,  43  N.  Y.  209;  Thompson  v.  Sloan,  23  Wend.  71. 

*  In  1897  the  Legisl  -tunes  of  New  York,  Connecticut,  Colorado,  Virginia  and  Fl  orida 
and  in  1898  those  of  Maryland  and  Massachusetts  adopted  a  uniform  code  of  laws  <  n  bills 
and  notes  which  was  prepared  and  recommended  by  the  Conference  of  Commissioners 
<  n  Uniformity  of  Laws.  Mr.  John  J.  Crawford,  of  New  York,  who  made  the  draft  of  the 
act.  has  prepared  an  edition  of  it,  with  annotations,  which  is  referred  to  in  the  succeed- 
ing pages  and  is  of  value  not  only  because  the  Act  adopted  embodies  the  rules  thought 
to  be  supported  by  the  most  weighty  authorities,  but  because  the  annotations  contain 
those  authorities  and  the  principal  ones  which  areronfm. 

This  Act  should  of  course  be  consulted  by  students  in  the  States  which  have  adopted 
it,  whether  attention  is  called  in  these  page's  to  the  changes  made  thereby,  or  not. 


BILLS  AND  NOTES.  il 

(d)  It  must  not  contain  an  independent  agreement;  e.  g.,  to 
pay  money  and  deliver  up  horses.     Martin  v.  Chauntry,  2   Str. 
1271.     But  if  there  is  a  memorandum  of  collateral  security  (Wise 
v.  Charlton,  4  Ad.  &  EL  786),  or  a  provision  to  facilitate  its  col- 
lection, such  as  an  agreement  to  pay  attorney's  fees  if  suit  is  neces- 
sary, this  probably  does  not  destroy  its  negotiability.     Sperry  v. 
Horr,  32  Iowa,  184.     The  case  of  Overton  v.  Tyler,  3  Barr.  (Penn.), 
346,  represents  the  courts  holding  that  such  a  promise  destroys  ne- 
gotiability, but  the  decisions  are  in  much  confusion. 

(e)  It  must  be  for  a  definite  sum,  and  the  amount  should  appear 
on  its  face.     That  is,  a  promise  "  to  pay  $65.00,  and  all  other  sums 
which  may  be  due,"  is  not  a  note.   Smith  v.  Nightingale,  2  Starkie, 
375;  Riker  v.  Sprague  Mfg.  Co.,  14  R.  I.  402.     And  compare  the 
preceding  paragraph. 

(f)  It  must  be  certain  as  to  time  of  payment.     As  a  convenient 
commercial  representative  of  money,  a  note  should  by  its  own 
terms  show  a  specific  date  for  its  maturity,  or  an  option  in  the 
holder  by  which  he  can  at  any  time  fix  it.     Otherwise,  in  order, 
to  charge  indorsers,  the  holder  would  have  to  be  constantly  on 
the  watch  for  the  happening  of  some  contingency.     Alexander  v. 
Thomas,  16  Q.  B.  333;  Brooks  v.  Hargreaves,  21  Mich.  254.     It  is 
probably  law,  however,  that  if  the  event  is  one  which  must  neces- 
sarily   occur,  the    uncertainty    in    time    does    not    destroy    the 
negotiability    of    the    instrument.      Colehan    v.    Cooke,    Willes, 
393  (ten  days  after  the  death  of  my  father);  Bristol  v.  Warner,  19 
Conn.  7  (on  demand,  after  my  decease);  Riker  v.  Sprague  Mfg. 
Co.,  supra. 

(g)  There  must  be  certainty  of  parties.     A  bill  must  be  signed 
by  a  drawer,  and  a  note  by  a  maker  (McCall  v.  Taylor,  34  L.  J. 
Rep.  365);  and  there  must  be  a  payee  sufficiently  described  to  be 
ascertained.     Thus,  a  note  to  "  A.  B.,  trustee,"  or  to  "  the  estate  of 
Y.,"  is  good.     It  means  the  person  who  is  trustee,  or  executor,  at 
maturity.    Shaw  v.  Smith,  150  Mass.  166.    So,  a  bill  must  name  a 
drawee.     Peto  v.  Reynolds,  9  Ex.  410. 

(h)  A  bill  or  note  becomes  operative  only  upon  delivery.  What 
amounts  to  delivery  is  a  question  of  intention.  Chamberlain  v. 
Hopps,  8  Vt.  94;  Lawrence  v.  Bassett,  5  Allen,  140. 

See,  on  this  whole  subject,  2  Ames,  Cas.  on  Bills  and  Xotes,  826, 
834;  Crawford,  Neg.  Inst.  Act,  pp.  8-16- 

3.  Define  accommodation  paper. 

It  is  a  device  to  supply  credit.  X.  wishes  to  raise  money  and 
applies  to  Y.  for  the  use  of  his  name  to  support  X.'s  credit.  For 
this  purpose,  Y.  signs  a  note  payable  to  X.'s  order,  or  indorses 
one  already  in  existence  or  draws  or  accepts  a  bill,  generally  without 
consideration.  The  importance  of  the  subject  is  this:  that  a  subse^ 
quent  holder,  even  if  he  knows  that  there  was  no  actual  business 
transaction  between  X.  and  Y.,  can  recover  against  Y.  as  maker  or 


42  QUESTIONS  AND  ANSWERS. 

acceptor  or  indorser,  as  he  may  appear  on  the  instrument.  Ob- 
viously, if  such  knowledge  by  a  third  party  prevented  his  recovering 
from  Y.,  the  practice  would  lose  much  of  its  value  to  the  accommo- 
dated party.  The  Grocers'  Bank  of  XTew  York  v.  Penneld,  69  X.  Y. 
502;  Duncan  v.  Gilbert,  29  K  J.  Law,  521.  What  remedy  over 
would  be  available  to  Y.  as  against  X.,  would  of  course  depend  on 
the  contract  between  them. 

4.  What  is  the  legal  status  of  a  check?  of  a  certificate  of 
deposit? 

A  check  is  simply  a  bill  of  exchange,  payable  on  demand,  and 
drawn  on  a  bank  or  banker.  Crawford,  Xeg.  Inst.  Law,  112; 
Bowen  v.  Newell,  4  Seld.  190. 

A  certificate  of  deposit  is  a  promissory  note.  Bank  v.  Merrill, 
2  Hill,  295;  Bellows  Falls  Bank  v.  Rutland  Bank,  40  Yt.  377. 

5.  Is  a  consideration  necessary  in  a  bill  or  note?  and  if  so, 
between  what  parties  can  the  want  or  failure  thereof  be  shown 
as  a  defense? 

A  valuable  consideration  is  necessary  between  the  immediate 
parties  to  a  bill  or  note,  as  much  as  in  a  simple  contract, 
and  as  between  them,  the  want  or  failure  of  it  may,  there- 
fore, always  be  shoAvn.  Thus,  one  Avho  signs  his  note  and  delivers 
it  as  a  gift  cannot  be  held  liable  upon  it  by  the  donee,  even  though 
there  is  a  strong  moral  obligation  or  a  valid  reason  of  natural  love 
and  affection  which  induced  him  to  give  it.  Hill  v.  Buckminster, 
5  Pick.  391;  Fink  v.  Cox,  18  Johns.  148.  The  other  rules  govern- 
ing the  consideration  of  simple  contracts  apply  equally  to  commer- 
cial paper.  For  example,  a  note  given  for  a  debt  barred  by  the 
Statute  of  Limitations  creates  a  binding  obligation;  Giddings  v. 
Giddings,  51  Vt  227;  s.  c.,  31  Am.  Eep.  682;  and  again,  if  a  note 
be  founded  on  an  illegal  consideration  it  is  unenforceable  and  the 
parties  will  be  left  where  they  are.  Scollans  v.  Flynn,  120  Mass. 
271. 

"  Immediate  parties  "  are,  maker  and  payee,  drawer  and  payee, 
acceptor  and  drawer,  and  an  indorsee  and  his  immediate  indorser. 
1  Daniel,  Neg.  Inst.,  §  174. 

As  between  "  remote  parties,"  e.  g.,  between  indorsee  and  maker 
or  payee  and  acceptor,  the  want  or  failure  of  consideration  in  the 
original  transaction  cannot  be  shown  unless  every  transfer  of  the 
instrument  has  been  either  without  value,  or  with  knowledge  of  the 
defect  in  question.  In  other  words,  any  one  transfer  before  ma- 
turity, where  value  passed,  and  the  transferee  had  no  notice  of 
the  defect,  protects  all  subsequent  holders,  even  if  they  know  all 
the  facts  as  to  consideration.  Hascall  v.  Whitmore,  19  Me.  102; 
s.  c.,  36  Am.  Dec.  738;  Estabrook  v.  Boyle,  1  Allen,  412. 

Accommodation  paper  stands  on  a  footing  peculiar  to  itself. 
See  Ques.  3,  supra. 


BILLS  AND  XOTES.  43 

6.  Suppose  X,  makes  his  note,  "Two  years  after  date  I  prom- 
ise  to  pay  John  Smith  ten   dollars."     Is   this   a  promissory 
note? 

Such  an  instrument  is  known  as  a  "  non-negotiable  note,"  though 
that  is,  perhaps,  a  contradiction  in  terms.  For  while  it  is  held  to 
be  a  species  of  commercial  paper,  though  without  words  of  nego- 
tiability (Arnold  v.  Sprague,  34  Vt.  402;  Averett  v.  Booker,  15 
Gr<xtt,  [Va.]  163;  s.  c.,  76  Am.  Dec.  203),  nevertheless,  it  lacks 
that  characteristic  which  is  the  chief  value  of  such  paper.  See 
Ques.  1. 

Thus,  though  these  notes  prima  facie  import  a  consideration 
(Carnwright  v.  Gray,  127  N.  Y.  92),  and  carry  days  of  grace 
(Duncan  v.  Maryland  Sav.  Inst.,  10  Gill.  &  J.  [Md.]  195),  an  in- 
dorsee is  merely  an  assignee  and  stands  in  his  assignor's  shoes. 
Lyon  v.  Summers,  7  Conn.  399;  Dyer  v.  Homer,  22  Pick.  253. 

II.       ACCEPTANCE. 

7.  What  is  the  usual  method  of  accepting  a  bill,  and  what  is 
the  contract  which  the  acceptor  makes? 

The  decisions  are  unsettled  and  irreconcilable,  but  the  method 
of  acceptance  by  writing  "  Accepted,  John  Smith,"  across  the  face 
of  the  bill,  is  the  most  satisfactory  from  a  legal  standpoint,  be- 
cause a  bill  or  note  ought  to  show  what  its  condition  is  by  what  ap- 
pears upon  it.  In  this  country,  however,  an  acceptance  on  another 
paper  is  good.  The  rule  almost  universally  followed  is  laid  down 
in  Coolidge  v.  Payson,  2  Wheat.  66.  "A  letter  written  within  a 
reasonable  time  before  or  after  the  date  of  a  bill  of  exchange,  de- 
scribing it  in  terms  not  to  be  mistaken,  and  promising  to  accept 
it,  is,  if  shown  to  the  person  who  afterwards  takes  the  bill  on  the 
credit  of  the  letter,  a  virtual  acceptance  binding  the  person  who 
makes  the  promise."  See  Exchange  Bank  v.  Rice,  98  Mass.  288 
(a  full  discussion);  Barney  v.  "Worthington,  37  N.  Y.  112.  At 
common  law  an  oral  acceptance  is  enough.  Exchange  Bank  v. 
Rice,  supra;  Jarvis  v.  Wilson,  46  Conn.  90. 

Furthermore,  it  is  in  many  jurisdictions  law  that  an  acceptance, 
though  not  appearing  on  the  bill,  is  binding  in  favor  of  any  holder, 
whenever  it  is  given,  provided  the  acceptor's  promise  is  made  to 
*l  any  person  interested  in  having  the  bill  paid."  Spaulding  v. 
Andrews,  48  Penn.  St.  411;  Jones  v.  Council  Bluffs  Bank,  34  111. 
313:  s.  c.,  85  Am.  Dec.  306. 

The  liability  assumed  by  the  general  acceptance  of  a  bill  is  like 
that  of  the  maker  of  a  note,  namely,  to  pay  it  according  to  its 
tenor*  to  the  payee  or  subsequent  holder  in  due  course.  The 
acceptor's  obligation  is  primary,  and  it  is  not  a  promise  to  pay  the 
debt  of  another.  Jarvis  v.  Wilson,  supra;  Spaulding  v.  Andrews, 

•Formalities  as  to  duty  of  presentment  for  payment,  place  of  payment,  etc..  are 
considered  under  Presentment,  infra. 


44  QUESTIONS  AND  ANSWERS. 

supra.  Accordingly,  the  genuineness  of  the  drawer's  signature 
and  his  capacity  and  authority  to  draw  are  not  involved  in  a  suit 
against  the  acceptor.  Halifax  v.  Lyle,  3  Ex.  446;  National  Park 
Bank  v.  Ninth  Nat.  Bank,  46  N.  Y.  77. 

8.  What  are  conditional  and  qualified  acceptances,  and  what 
is  the  effect  of  taking  an  acceptance  of  either  kind? 

A  conditional  acceptance,  as  its  name  indicates,  is  one  which 
makes  the  liability  of  the  acceptor  dependent  on  the  happening 
of  some  event,  as  an  acceptance  "  to  pay  when  in  funds." 

A  qualified  acceptance  is  one  which  varies  the  sum,  time,  placer 
or  mode  of  payment. 

If  the  drawee  puts  a  conditional  or  a  qualified  acceptance  on  the 
bill,  the  party  who  has  presented  it  to  him  for  acceptance  has  a 
choice  of  two  alternatives;  he  may  treat  the  bill  as  then  and  there 
dishonored,  and  by  proper  protest  and  notice  hold  the  parties 
whose  names  are  already  on  the  instrument,  or  he  may  keep  the 
obligation  in  its  new  form.  In  the  latter  event,  the  parties  whose 
names  are  already  on  the  bill  are  discharged,  for  the  acceptor  has 
changed  its  terms  and  they  cannot  be  bound  by  this  new  contract. 
1  Daniel,  Neg.  Inst,  §§  508,  509,  515;  Whitehead  v.  Walker,  9  M. 
&  W.  506;  Russell  v.  Phillips,  14  Q.  B.  900;  Tuckerman  v.  Hart- 
well,  3  Me.  147. 

9.  What  is  an  acceptance  supra  protest,  or  for  honor? 

When  a  bill  has  been  protested  for  nonacceptance,  a  stranger  to- 
the  bill  may  accept  it  "  for  the  honor  "  of  the  drawer  or  an  in- 
dorser.  His  contract  is  to  pay  the  bill  if  it  is  regularly  presented 
to  the  drawee  at  its  maturity,  payment  refused,  and  due  notice 
given  him.  Williams  v.  Germaine,  7  B.  &  C.  468;  Byles  on  Bills, 
*p.  267. 

By  the  custom  of  merchants,  if  an  acceptor  for  honor  pays  the 
bill,  he  can  recover  the  amount  from  the  person  for  whose  honor 
he  accepted  it  (generally  the  drawer).  Mertens  v.  Winnington,. 
1  Eep.  113;  Konig  v.  Bayard,  1  Pet.  250;  Byles  on  Bills,  *p.  268. 

III.     INDORSEMENT. 

10.  State  the  mode  of  indorsement  in  full  and  its  effect. 

An  indorsement  is  an  order  to  the  acceptor  or  maker  written  by 
the  payee  or  subsequent  holder  in  due  course  upon  the  instru- 
ment, to  pay  the  contents  of  the  bill  or  note  to  some  third  person. 
An  indorser  of  a  note  thus  becomes  practically  the  drawer  of  a 
bill,  with  the  maker  as  its  acceptor.  Delivery  is  necessary  to  com- 
plete an  indorsement.  Marston  v.  Allen,  8  M.  &  W.  494;  Mid- 
dleton  v.  Griffith,  57  N.  J.  L.  442;  2  Parsons  on  Notes  and  Bills, 
p.  25;  Bouv.  Law  Diet.,  "Indorsement." 


BILLS  AND  XOTES.  -15 

The  effect  of  such  indorsement  is  twofold.  It  transfers  the 
title  of  the  instrument  to  the  indorsee,  and  raises  a  contract  by 
the  indorser,  namely,  that  he  will  pay  the  bill  or  note,  if  at  ma- 
turity it  is  dishonored  and  proper  steps  taken  to  give  him  notice. 
Clark  v.  Sigourney,  17  Conn.  511,  519;  Ross  v.  Jones,  22  Wall. 
576,  588. 

11.  What  is  the  meaning  of  "indorsement  in  blank"?  of 
"  indorsement  without  recourse  "  ?  of  an  indorsement   "Pay  X.'"\ 

An  indorsement  in  blank  is  one  where  the  name  of  the  trans- 
feree is  not  stated;  i.  e.,  it  is  usually  simply  the  signature  of  the 
indorser.  It  gives  authority  to  the  transferee  or  any  subsequent 
holder  in  due  course  to  fill  in  his  own  name.  Byles  on  Bills, 
*p.  148. 

An  indorsement  with  the  words  "without  recourse"  or  equiva- 
lent terms,  means  that  the  indorser  transfers  the  title,  but  assumes 
no  liability  to  pay  the  holder  of  the  instrument  if  it  is  dishonored  at 
maturity.  Rice  v.  Stearns,  3  Mass.  225;  Byles  on  Bills,  *p.  151. 
Such  indorsement,  however,  being  a  sale,  the  indorser  warrants 
"  that  the  instrument  itself  and  all  the  antecedent  signatures  are 
genuine."  Blethen  v.  Levering,  58  Me.  437;  Hannum  v.  Richard- 
son, 48  Vt.  408. 

"  Pay  X."  means  "  Pay  X.  or  order."  "  The  words  of  the  in- 
dorsement are  interpreted  by  the  negotiable  character  of  the  in- 
strument, and  that  being  negotiable,  the  contract  between  the 
ind<  rser  and  the  indorsee  is  equally  negotiable  although  it  was 
not  indorsed  to  X.  '  or  order'."  Edie  v.  E.  I.  Co.,  1  W.  Bl.  295; 
Hodges  v.  Adams,  19  Vt.  74. 

12.  Suppose  A.  wishes  to  get  his  note  discounted  at  a  bank, 
and  needs  the  credit  of  someone  else  to  induce  the  bank  to  take 
it.     He  executes  the  note,  making  the  bank  payee,  and  B.  writes 
Tiis  name  on  the  back.     What  is  B.'s  liability  to  the  bank  or  its 
indorsee? 

Such  indorsement  is  known  as  an  irregular  or  anomalous  in- 
dorsement, and  decisions  as  to  the  indorser'?  liability  are  almost 
as  varied  as  they  are  numerous.  Such  an  indorser  never  has  the 
title  to  the  note,  and  the  idea  of  the  bank  as  payee  suing  B.,  as 
indorser.  was  so  opposed  to  the  usual  course  that  courts  made  every 
effort  to  escape  it. 

One  line  of  case?  (the  most  numerous)  holds  B.  bound  as  a  joint 
maker  with  A.,  so  that  a  holder,  to  charge  other  indorsers,  must 
present  the  note  at  maturity  to  both  A.  and  B.  President,  etc.  v. 
Willis,  8  Met.  (Mass.)  504  (but  see  Mass.  Stat.  1874,  chap.  404.  and 
Bank  v.  Law.  127  Mass.  72):  Rothschild  v.  Grix,  31  Mich.  150; 
«.  c.,  18  Am.  Rep.  171. 


46  QUESTIONS  AND  ANSWERS. 

Other  courts  hold  B.  as  a  guarantor,  the  guaranty  being  nego- 
tiable. Camden  v.  McKoy,  4  111.  437;  Carroll  v.  Weld,  13  id.  682. 

In  .Louisiana,  B.  is  a  surety.  McGuire  v.  Bosworth,  1  La.  Ann. 
248.  And  see  Cook  v.  Southwick,  9  Tex.  615,  for  further  illustra- 
tion of  the  struggle.* 

New  York  and  a  few  other  States  have  adopted  the  simplest 
solution,  namely,  they  assume  the  transaction  to  have  been  (1) 
the  making;  (2)  an  indorsement  without  recourse  by  the  payee 
(bank);  (3)  indorsement  in  blank  by  B.  Hall  v.  Newcomb,  7  Hill,. 
416;  Barto  v.  Scheneck,  28  Penn.  St.  427. 

This  desirable  result,  which  generally  corresponds  to  the  facts 
and  the  intention  of  the  parties,  has  been  more  directly  reached  and 
very  clearly  stated  in  the  Negotiable  Instruments  Law  (alluded  to 
above,  and  settling  the  law  for  the  States  mentioned  in  the  note 
to  Ques.  1  of  this  section).  See  Crawford's  Ann.  Neg.  Inst.  Actr 
§  114;  and  on  the  whole  subject,  1  Ames,  Cas.  on  Bills  and  Notes, 
note,  p.  269,  and  the  note  29  Am.  Dec.  297. 

IV.    TRANSFER. 
a.    Delivery. 

13.  What  is  the  effect  of  a  delivery  of  a  bill  or  note  without 
indorsement? 

If  it  is  payable  to  bearer  or  has  been  indorsed  in  blank,  the  de- 
livery is  a  complete  transfer  of  the  title.  No  indorsement,  is  ne- 
cessary, since  the  bearer  is  the  one  to  whom  the  promise  is  made. 
In  other  words,  that  is  a  transfer  "  according  to  the  tenor  of  the 
instrument."  Truesdell  v.  Thompson,  12  Met.  (Mass.)  565;  Poor- 
man  v.  Mills,  35  Cal.  118;  s.  c.,  95  Am.  Dec.  90;  Watervliet  Bank 
v.  White,  1  Denio,  608. 

If  the  instrument  is  payable  (or  indorsed)  to  order,  a  delivery 
passes  the  title  in  equity.  The  transferee  can  compel  his  trans- 
feror to  indorse  it,  and  a  subsequent  indorsement  by  him  after 
becoming  a  bankrupt,  or  by  his  personal  representative  after  his 
decease,  is  good.  Watkins  v.  Maule,  2  Jacob  &  Walker,  237;  Mal- 
bon  v.  Southard,  36  Me.  147. 

b.    Purchaser  for  Value  Without  Notice. 

14.  A.  makes  a  note  payable  to  bearer.     Subsequently  it  is 
stolen  from  the  owner  by  B.,  who  transfers  it  before  maturity 
for  value  to  C.     C.  has  no  notice  of  the  theft.     Is  A.  liable  to 
C.f 

A.  is  liable,  although  B..  not  being  the  rightful  holder,  had  no 
right  to  transfer  it  to  C.  The  latter,  however,  taking  for  value, 
without  notice,  and  before  maturity,  can  recover.  As  it  is  com- 

*  Almost  everywhere  refinements  as  to  presumptions  of  law  or  fact,  admission  of  evi- 
dence on  the  real  intention  of  the  parties,  and  the  like,  increase  the  confusion. 


BILLS  AND  NOTES.  47 

monly  put,  the  thief  has  no  title,  but  he  can  convey  a  good  title  to  an 
innocent  purchaser  for  value. 

This  is  for  the  convenience  and  security  of  mercantile  transac- 
tions, and  is  peculiar  to  the  law-merchant,  being  in  striking  con- 
trast to  the  common-law  rule  of  sales  that  the  seller  can  only 
pass  what  rights  he  himself  possesses.  Miller  v.  Race,  1  Burr. 
452;  s.  c.,  1  Sm.  Lead.  Gas.  250;  2  Parsons  on  Notes  and  Bills,  267- 
260;  Peacock  v.  Rhodes,  2  Doug.  633;  Seybel  v.  Bank,  54  N.  Y. 
288. 

15.  (a)  Smith  makes  a  note  payable  to  Brown  in  settlement 
of  a  gambling  debt  in  a  State  where  contracts  based  on  such  con- 
sideration are  absolutely  void.     Brown  sells. the  note  to  Robin- 
son, who  pays  value  and  has  no  knowledge  of  the  transaction 
between  the  maker  and  payee,     (b)  Smith  is  induced  by  Brown's 
fraud  to  execute  a  note  to  him,  which  is  also  sold  to  Robinson 
by  Brown  before  maturity  for  value  and  without  notice.     Is 
Smith  liable  to  Robinson  in  a  suit  on  either  or  both  of  these  notes? 

These  two  cases  bring  out  the  difference  between  defenses 
known  as  legal  or  real  defenses,  and  those  known,  as  equi- 
table or  personal.  If  a  note  is  void  as  between  the  original  parties, 
whether  by  statute  or  by  a  common-law  rule,  such  as  the  one  that 
the  contracts  of  a  married  woman  are  void,  no  one  can  recover  on 
it  against  the  maker.  It  never  had  any  life  in  it  as  a  note.  Lowe 
v.  Waller,  2  Doug.  736;  Kendall  v.  Robertson,  12  Gush.  156;  Streit 
v.  Sanborn,  47  Vt.  702  (void  because  for  a  prohibited  sale  of 
liquor.) 

On  the  other  hand,  in  the  second  case,  the  defense  is  personal 
only;  i.  e.,  it  is  a  perfectly  good  defense  to  Smith  in  a  suit  by 
Brown  on  the  note.  Robinson,  however,  can  recover.  The  note 
was  duly  executed  and  had  legal  existence.  Brown  thus  acquired 
the  legal  title,  and  although  as  against  him  Smith  had  an  equity, 
one  taking  the  title  before  maturity  for  value  and  without  notice 
cannot  be  affected  by  that,  Miller  v.  Finley,  26  Mich.  249;  s.  c.,  12 
Am.  Rep.  306;  Humphrey  v.  Clark,  27  Conn.  381.  Other  illustra- 
tions of  personal  defenses  are  failure  of  consideration;  Mulford  v. 
Shepard,  2  111.  583;  s.  c.,  33  Am.  Dec.  432;  and  the  case  of  a  note 
unenforceable  because  made  on  Sunday.  Cranson  v.  Goss,  107 
Mass.  439  (a  valuable  opinion  by  Gray,  C.  J.). 

16.  What  is  the  meaning  of  "  value  "  and  "  without  notice  " 
in  the  phrase,  "purchaser  for  rain?  without  notice,"  as  it   is 
used  in  the  laic  pertaining  to  bills  and  notes? 

A  buyer  of  a  bill  or  note  is  clearly  a  taker  "  for  value,"  when 
he  gives  in  exchange  actual  money  or  anything  which  would  be  a 
good  consideration  in  an  ordinary  contract:  e.  g.,  promise  to  for- 
bear enforcing  some  right.  Oates  v.  Nat.  Bank,  100  U.  S.  239, 


48  QUESTIONS  AND  ANSWERS. 

247.  The  question  whether  one  who  takes  a  note  in  conditional 
payment  of  a  pre-existing  debt  is  a  holder  for  value,  has  aroused 
much  discussion.  The  weight  of  authority  is  for  the  affirmative. 
Swift  v.  Tyson,  16  Pet.  1;  Brush  v.  Scribner,  11  Conn.  388; 
Blanchard  v.  Stevens,  3  Gush.  162.  The  leading  case  contra  is 
Stalker  v.  McDonald,  6  Hill,  93^  though  the  ruling  on  this  ex- 
act point  is  only  a  dictum.  This  decision  was  shaken  by  such 
cases  as  Mayer  v.  Heidelbach,  123  N.  Y.  332,  and  done  away  in 
New  York  by  the  Negotiable  Instruments  Act  of  1897,  section  51. 
See  Crawford,  Ann.  Neg.  Inst.  Act,  p.  30. 

"  Notice  "  means  that  the  plaintiff  knew  or  should  have  known 
;that  there  was  something  wrong  with  the  bill  or  note.  Gross  neg- 
ligence is  not  enough,  but  actual  bad  faith  must  be  shown.  Lord 
Blackburn's  summary  is  this:  "  It  is  not  enough  to  show  that 
there  was  carelessness,  negligence  or  foolishness  in  not  suspecting 
the  bill  was  wrong  when  there  were  circumstances  which  might 
have  led  to  such  a  suspicion.  *  *  *  If  he  was  (so  to  speak) 
honestly  blundering  and  careless,  he  would  not  be  disentitled  to  re- 
cover; but  if  it  appeared  that  he  must  have  had  a  suspicion  of 
something  wrong  and  that  he  refrained  from  asking  questions,  not 
because  he  was  an  honest  blunderer  or  a  stupid  man,  but  because 
lie  thought  in  his  secret  mind, '  I  suspect  there  is  something  wrong, 
and  if  I  ask  questions,  it  will  be  no  longer  suspecting,  but  knowing, 
And  then  I  shall  be  unable  to  recover,'  that  is  dishonesty."  Jones 
v.  Gordon,  2  App.  Cas.  616;  s.  c.,  26  W.  E.  172;  Seybel  v.  Bank, 
54  N.  Y.  288;  Goodman  v.  Simonds,  20  How.  (U.  S.)  343,  367. 

In  connection  with  this  topic,  compare  Ques.  22,  25,  in  section 
on  Trusts. 

17.  If  a  material  alteration  is  made  in  a  note,  does  this  afford 
a  real  or  a  personal  defense?  In  other  words,  can  the  maker 
(successfully  set  it  up  against  one  talcing  the  note,  after  such 
alteration,  for  value  and  without  notice  of  the  change? 

It  has  been  settled  that  such  alteration  furnishes  the  maker  a 
complete  defense.  It  renders  the  instrument  a  nullity  as  to  him, 
for  the  contract  as  altered  is  not  the  contract  to  which  he  bound 
himself.  Master  v.  Miller,  4  T.  E.  320  (change  in  date);  McGrath 
v.  Clark,  56  N.  Y.  34  (addition  of  "with  interest");  Citizens' 
«tc.,  Bank  v.  Eichmond,  121  Mass.  110  (amount  altered).  But  see 
Crawford,  Ann.  Neg.  Inst.  Act,  p.  87. 

It  should  be  noted,  however,  that  there  are  weighty  authorities 
which  hold  that  if  a  maker  executes  a  note  negligently  so  that  its 
alteration  is  easy,  he  is  liable  upon  it  in  the  altered  state.  Young  v. 
Grote,  4  Bing.  253;  Halifax  Union  v.  Wheelwright,  L.  R.  10  Ex.  183; 
Yocum  v.  Smith,  14  Am.  Rep.  120  (111.);  Leas  v.  Walls,  101  Pemi.  St 
57.  But  see,  contra,  Greenfield  Bank  v.  Stowell,  123  Mass.  196. 


BILLS  AND  NOTES.  49 

18.  Suppose  someone  forging  X.'s  name  draws  a  check  upon 
a  bank  and  sells  it  to  Z.,  who  has  no  notice  of  the  forgery.     The 
bank  pays  Z.,  and  later  discovers  the  forgery.     Who  loses;  X.t 
the  bank,  or  Z.  ? 

The  bank  loses.  They  cannot  charge  up  the  amount  to  the  ac- 
count of  X.  because  X.  did  not  draw  upon  them,  and  they  have, 
therefore,  no  authority  from  him  to  pay. 

Neither  can  the  bank  recover  from  Z.  Both  of  them  have  been 
deceived  by  the  same  person,  and  the  loss  must  lie  where  it  falls. 
Price  v.  Neal,  3  Burr.  1354;  National  Park  Bank  v.  Ninth  Nat. 
Bank,  46  N.  Y.  77;  Bank  v.  Bank,  10  Vt.  141. 

19.  A  bill  is  drawn  on  a  bank  payable  to  the  order  of  H. 
Davis.     The  bank  accepts  the  bill,  which  afterwards  is  indorsed 
by  another  H.  Davis  to  Z.,  who  is  innocent  of  any  knowledge  of 
the  forgery.     Is  the  bank  liable  to  Z.? 

Again,  suppose  a  forger  raises  the  amount  of  a  check,  and 
transfers  it  to  X.  The  bank  pays  it,  as  raised,  to  X.,  who  is  an 
innocent  holder  for  value.  Can  the  bank  recover  from  the 
latter? 

Both  cases  must  be  decided  in  favor  of  the  bank,  though  they 
stand  on  different  grounds.  In  the  first  case,  Z.  secures  no  title 
because  that  can  only  be  passed  by  the  real  H.  Davis.  The  bank 
has  agreed  to  pay  according  to  the  tenor  of  the  bill  only.  Con- 
sequently, it  has  a  right  to  require  that  the  indorsement  of  the 
payee  be  shown.  Mead  v.  Young,  4  T.  E.  28.  And  if  it  pays,  it 
can  recover  as  for  money  paid  under  a  mistake  of  fact.  Holt  v. 
Ross,  54  N.  Y.  472;  Espy  v.  Bank  of  Cincinnati,  18  Wall.  604. 

In  the  second  case,  though  it  would  seem  that  the  principle  of 
Price  v.  Neal  (3  Burr.  1354)  ought  to  apply  (see  4  Harv.  Law  Rev. 
306),  the  rule  is  that  the  bank  can  recover,  as  for  money  paid  under 
a  mistake  of  fact.  Redington  v.  Woods,  45  Cal.  406;  s.  c.,  13  Am. 
Rep.  190;  Birmingham  Nat.  Bank  V.  Bradley,  103  Ala.  109. 

Furthermore,  even  where  a  bank  has  certified  a  raised  check  (whereby 
the  drawer  is  discharged,  Minot  v.  Russ,  156  Mass.  458),  and  later 
pays  an  innocent  holder  who  has  taken  it  on  the  strength  of  the 
certification,  the  bank  can  recover  from  him.  Marine  Nat.  Bank  v. 
Nat  City  Bans,  59  N.  Y.  67;  Parke  v.  Roser,  67  Ind.  500.  On  principle, 
the  check  when  certified  becomes  an  obligation  of  the  bank  itself,  and 
when  it  goes  from  the  one  who  asks  for  the  certification  to  an  inno- 
cent holder  for  value,  the  latter  should  be  protected.  The  bank  ought 
to  be  treated  as  if  it  had  issued  a  certificate  of  deposit,  and  it  was 
so  held  in  Louisiana  Nat.  Bank  v.  Citizens'  Bank,  28  La.  Ann.  189;  s.  c., 
26  Am.  Rep.  92,  note  on  96. 

By  the  uniform  Negotiable  Instruments  Act,  the  certification  is  made 
44  equivalent  to  an  acceptance." 
4 


50  QUESTIONS  AND  ANSWERS. 

c.    Transfer  of  Overdue  Paper. 

20.  A.  makes  his  note  to  the  order  of  B.,  payable  in  two 
months.     The  consideration  is  illegal.     After  the  expiration  of 
the  two  months,  B.  setts  the  note  to  C.,  who  pays  value  and  has 
no  knowledge   of  the   consideration   for   it.     Can   C.    recover 
against  A.? 

He  cannot.  If  he  had  bought  of  B.  under  the  same  circum- 
stances, but  before  maturity,  he  could  of  course  have  recovered 
from  the  maker  (Questions  14,  15,  16,  supra);  but  after  the  date  of 
its  maturity,  commercial  paper  is  not  supposed  to  circulate  as  such. 
The  protection  of  a  bona  fide  purchaser  is  taken  away  and  C.  here- 
takes  the  note  subject  to  the  same  equitable  defense  to  which  it 
was  open  while  held  by  B.  Bissell  v.  Gowdy,  31  Conn.  47. 

The  above  case  is  typical,  and  the  same  rule  holds  for  all  cases 
where  the  maker  would  have  an  equitable  defense  against  a  suit 
by  the  payee.  Howard  v.  Ames,  3  Met.  (Mass.)  308  (fraud);  Amer. 
Bank  v.  Jenness,  2  Met.  (Mass.)  288  (payment);  Brown  v.  Davies,  3 
T.  K.  80. 

21.  Suppose  a  note  by  A.  to  B.  tainted  with  fraud,  and  a 
transfer  for  value  and  without  notice  of  the  fraud  to  C.  before 
maturity.     C.  transfers  it  to  X.  after  maturity.     Can  A.  suc- 
cessfully claim  that  because  X.   bought  after  maturity,  he  is 
subject  to  the  defense  available  between  the  original  parties? 

No.  X.  stands  in  C.'s  shoes,  and  C.  was  safe,  being  a  bona  fide 
purchaser  before  maturity.  C.  owned  an  unassailable  title  to  the 
note,  and  X.,  whenever  he  buys,  holds  the  note  on  the  same  terms. 
Roberts  v.  Lane,  64  Me.  108;  s.  c.,  18  Am.  Rep.  242;  Sonoma  Bank 
v.  Gove,  63  Cal.  355;  s.  c.,  49  Am.  Rep.  92. 

Moreover,  he  is  protected  even  if  he  in  fact  knows  of  the  orig- 
inal fraud,  for  C.'s  protection  would  be  imperfect  if  he  could  not 
sell  freely.  Roberts  v.  Lane,  supra;  and  cf.  section  on  Trusts,. 
Question  23. 

22.  A.  maJces  his  note  to  B.  on  good  consideration,  but  there 
is  a  collateral  obligation  of  B.'s  in  favor  of  A.  which  A.  could  set 
off  against  B.  in  a  suit  on  the  note.     If  B.  transfers  after  ma- 
turity, is  the  transferee  subject  to  this  right  of  set-off? 

By  the  weight  of  authority,  the  transferee  is  free  from  the? 
set-off,  for  the  reason  that  it  has  nothing  to  do  with  the  instru- 
ment itself.  The  equities  to  which  an  indorsee  of  overdue  or 
dishonored  paper  is  subject  "  must  be  inherent  in  the  bill  or 
note."  2  Daniel,  Neg.  Inst,  §§  1435-1437;  Burroughs  v.  Moss,  10 
B.  &  C.  558;  Robinson  v.  Lyman,  10  Conn.  30;  Trafford  v.  Hall,  7 
B.  1. 104;  s.  c.,  82  Am.  Dec.  589. 


BILLS  AND  NOTES.  51 

The  opposing  decisions  hold  that  the  set-off  is  available  if  it  was 
in  existence  at  the  time  of  the  transfer.  Baxter  v.  Little,  6  Met.  1; 
s.  c.,  39  Am.  Dec.  707;  Sargent  v.  Southgate,  5  Pick.  312;  s.  c.,  16 
Am.  Dec.  409.  And  see  section  on  New  York  Code,.Ques.  31. 

» 

23.  A  note  payable  to  bearer  was  stolen  from  the  holder  before 
it  was  due  and  sold  by  the  thief  to  Y.  after  maturity.     Can  the 
former  holder  compel  Y.  to  deliver  up  the  note? 

Yes.  The  theory  is  that  a  thief  or  finder,  having  no  title,  can 
confer  none  after  maturity,  even  to  an  honest  buyer.  The  pro- 
tection afforded  by  the  law-merchant  to  a  bo na  fide  purchaser  is 
only  for  purchasers  before  maturity,  and  the  transfer  here  was  the 
same  as  the  sale  of  an  ordinary  chattel.  The  former  owner  can, 
therefore',  proceed  against  Y.  and  regain  the  note.  Vermilye  & 
Co.  v.  Adams  Exp.  Co.,  21  Wall.  138;  Hinckley  v.  Bank,  131  Mass. 
147. 

24.  When  is  a  demand  note  overdue,  so  that  one  taking  it 
thereafter  is  bound  by  its  defects? 

At  common  law,  in  this  country,  the  rule  was  that  a  demand 
note  was  overdue  after  a  reasonable  time,  what  was  a  reasonable 
time  being  dependent  "  on  the  circumstances  of  the  case  and  the 
situation  of  the  parties."  Tomlinson  Co.  v.  Kinsella,  31  Conn. 
268;  Losee  v;  Dunkin,  7  Johns.  70.  And  see  Question  35,  infra. 
This  unsatisfactory  limitation  has  been  in  some  States  changed 
to  a  fixed  time  (Mass.  Gen.  Stat.,  chap.  53,  §  10;  Cal.  Civil  Code, 
§  3248;  Paine  v.  C.  V.  R.  R.  Co.,  118  U.  S.  152),  but  the  Negotiable 
Instruments  Act  continued  the  old  law.  Crawford,  Ann.  Neg. 
Inst.  Act,  §  92. 

V.    DISCHARGE;  INCLUDING  PAYMENT  AND  RETRANSFER. 

a.     Discharge. 

25.  Under  what  circumstances   is  the  primary  debtor  dis- 
charged from  liability  on  the  instrument? 

1.  By  voluntary  physical  destruction  of  the  instrument  by  the 
holder.     Bank  of  the  U.  S.  v.  Sill,  5  Conn.  106;  Blade  v.  Noland, 
12  Wend.  173. 

2.  By  voluntary  cancellation  of  the  instrument  by  the  holder 
(Baxendale  v.  Bennett,  3  Q.  B.  Div.  525;  Dist.  of  Columbia  v.  Cor- 
nell, 130  U.  S.  655);  but  the  cancellation  must  be  so  made  as  to 
be  apparent  on  the  face  of  the  note,  or  it  is  no  defense  against  one 
buying  boiia  fide  before  maturity.     Ingham  v.  Primrose,  7  C.  B. 
(S.  S.)  82.' 

3.  By  renunciation  by  the  holder  of  his  rights.     If  this  occurs  at 
or  after  maturity,  the  instrument  is  discharged;  if  before  maturity, 


52  QUESTIONS  AND  AXSWEBS.' 

it  is  equally  good,  except  against  one  purchasing  for  value  and 
without  notice  before  that  date.  Foster  v.  Dawber,  6  Exch.  839. 
In  this  country  the  rule  is  that  a  renunciation  is  in  no  case  ef- 
fectual without  a  surrender  of  the  instrument.  Vanderbeck  v. 
Vanderbeck,  30  X,  J.  Eq.  267;  Bragg  v.  Dapielson,  141  Mass.  195. 

4.  By  payment  in  due  course.     See  Questions  29,  30,  infra. 

5.  By  material  alteration.     See  Question  17,  supra. 

6.  By  operation  of  law,  as  by  appointment  of  the  acceptor  or 
maker  as  executor  of  the  holder,  thus  merging  in  one  the  creditor 
and  the  debtor.     Freakley  v.  Fox,  9  Barn.  &  Cr.  130;  s.  c.,  17  E. 
C.  L.  66;  Byles  on  Bills,  *pp.  55,  56.* 

On  the  whole  subject,  see  2  Ames  on  Bills  and  Xotes,  821  et  seq. 

26.  There  are  four  indorsers  on  a  note.  Suppose  the  holder 
gives  the  secon.d  one  a  full  discharge  of  all  liability  on  it,  or 
makes  a  binding  contract  with  him  that  he  shall  not  be  sued  on 
it  for  a  certain  time.  What  is  the  effect  on  the  third  and  fourth 
indorsers? 

Their  liability  is  discharged. 

The  contract  of  an  indorser  has  two  aspects.  The  agreement 
to  pay  the  holder  on  dishonor  of  the  note  is  counterbalanced  by 
a  right  of  recourse  to  any  prior  party  for  indemnity.  The  duty 
and  the  right  are  interdependent,  and,  consequently,  whatever 
amounts  to  a  discharge  of  any  one  party  operates  to.  discharge  all 
subsequent  parties.  For  if  a  holder  after  discharging  an  indorser 
X.  should  then  proceed  against  an  indorser  Y.,  whose  indorsement 
was  subsequent  to  X.'s,  Y.  could  say,  "  You  have  destroyed  my 
right  of  recourse  on  this  instrument  and,  therefore,  you  have  no 
right  to  ask  me  to  pay."  The  chain  falls  to  pieces. 

The  reason  for  the  rule  is  also  stated  (and  perhaps  more  ac- 
curately) in  other  terms,  namely,  that  it  is  to  prevent  circuity 
of  action.  For  if  the  holder  after  releasing  a  prior  indorser  should 
be  allowed  to  compel  payment  from  a  subsequent  indorser,  the 
latter  ought  to  be  allowed  to  sue  the  prior  indorser.  But  the 
holder  has  agreed  with  the  latter  that  this  shall  not  be  done,  so  he 
(the  holder)  would  be  liable  in  turn  to  him.  Randolph  on  Commer- 
cial Paper,  §§  772,  1430;  Story  on  Promissory  Xotes,  §§  400-402, 
413,  414;  Brown  v.  "Williams,  4  Wend.  360;  Xewcomb  v.  Eaynor,  21 
id.  108.  See  2  Ames  Cases  on  Bills  and  Xotes,  118,  120. 

In  the  same  way,  if  instead  of  a  full  discharge  there  is  a  valid 
agreement  to  give  the  prior  indorser  time,  without  the  consent  of 
the  subsequent  indorsers,  the  latter  are  discharged  from  all  lia- 
bility, since  the  holder  has  no  more  right  to  impair  or  hamper 
their  right  of  recourse  than  he  has  to  destroy  it.  By  the  end  of 
the  time  named,  the  prior  indorser  may  be  insolvent'  and  their 
remedy  over,  worthless.  Hence,  they  are  fully  discharged.  Phil- 

*  Many  States  hare  modified  by  statute  the  common-law  rule  alluded  to. 


BILLS  AND  NOTES.  53 

• 

pot  v.  Briant,  4  Bing.  717;  s.  c.,  13  E.  C.  L.  708;  and  authorities 
just  cited. 

The  absolute  discharge  of  the  one  primarily  liable  of  course  dis- 
charges everyone  on  the  instrument.  2  Daniel,  Neg.  Inst.,  §  1236; 
Suydam  v.  Westfall,  2  Denio,  205;  Dooley  v.  Co.,  3  Hughes  (C.  C.), 
22i. 

27.  If  the  holder  in  the  preceding  case  had  gratuitously  as- 
sured the  second  indorser  that  he  would  not  sue  him  for  a  certain 
time,  would  the  subsequent  indorsers  have  been  released? 

No.  They  are  released  only  if  the  holder  and  the  prior  indorser 
make  a  binding  enforceable  contract  that  no  action  shall  be  taken 
on  the  instrument.  Neither  a  mere  promise  to  forbear  for  a  cer- 
tain time,  nor  actual  delay  and  indulgence  is  sufficient;  there  must 
be  a  consideration.  Ross  v.  Jones,  22  Wall.  576;  Philpot  v.  Briant, 
4  Bing.  717;  s.  c.,  13  E.  C.  L.  708;  Bell  v.  Martin,  18  N.  J.,  Law, 
167. 

It  should,  however,  be  noticed  that  even  if  there  is  a  binding  contract 
made,  the  holder  may  preserve  his  rights  against  the  subsequent  in- 
dorsers by  making  his  intention  to  do  so  clear*.  The  contract  with 
the  prior  indorser  is  then  construed  to  mean  simply  that  the  holder  will 
not  sue  the  party  in  question,  and  since  any  indorser  who  wishes  can 
pay  up  the  note  and  immediately  oring  sv.it.  the  latter's  right  of  recourse 
has  not  been  impaired  by  the  contract  as  thus  made.  Sohier  v.  Lorin-r. 
6  Cush.  537 ;  Hagey  v.  Hill,  75  Penn.  St.  108 ;  s.  c.,.  15  Am.  Rep.  583. 
See  2  Ames  Cases,  120. 

28.  Summarize  the  ways  in  which  one  secondarily  liable  on. 
a  bill  or  note  is  discharged. 

1.  By  a  full  release  or  discharge  of  a  prior  party  by  the  holder 
as  explained  in  Question  26. 

2.  By  a  binding  agreement  by  the  holder  with  .a  prior  holder 
that  the  latter  shall  not  be  sued  for  a  time  named.     This  impairs 
the  rights  of  all  subsequent  indorsers  as  pointed  out  in  Question 
26,  and  discharges  them  on  principles  analogous  to  those  which 
govern  the  discharge  of  sureties.     See  Ross  v.  Jones,  22  Wall. 
57i5.  and  Bell  v.  Martin.  18  X.  J.  Law,  167.  supra. 

3.  By  the  intentional  cancellation  (by  the  holder)  of  his  signa- 
ture.    2  Parsons  on  Notes  and  Bills,  30. 

4.  By  a  material  alteration.     This  avoids  the  instrument  as  to  all 
parties  who  are  bound  by  it  at  the  time  of  the  alteration.     It  ef- 
fects a  change  in  their  contract  to  which  they  have  not  assented. 
See  Question  17,  supra. 

On  the  whole  topic,  see  Crawford.  Ann.  Neg.  Inst.  Act,  pp.  83-88. 

5.  Payment  by  any  indorser  at  or  after  maturity  discharges  all 
indorser=  whose  liability  is  subsequent  to  his.    West,  etc.,  Bank  v. 


54          .  QUESTIONS  AND  ANSWEKS. 

Thompson,  124  Mass.  515;  Davis  v.  Miller,  14  Gratt.  5;  Story  on 
Promissory  Notes,  §§  400-402. 

b.    Payment. 

29.  Before  maturity,  X.,  the  maker  of  a  note,  paid  it  to  the 
holder ',  Y.,  but  did  not  take  the  note.     Y.  thereupon  sold  it,  still 
before  maturity,  to  a  bona  fide  purchaser,  who  sued  the  maker 
upon  it.     Can  he  recover? 

Yes.  The  transaction  between  X.  and  Y.,  while  it  furnished  a 
good  defense  to  X.  against  Y.,  was  not  a  payment  in  due  course. 
It  is  not  the  habit  of  business  men  to  pay  their  notes  before  they 
are  due,  and  such  payment  is  not  available  as  a  defense  against 
parties  buying  in  good  faith  before  maturity.  2  Daniel,  Neg. 
Inst.,  §  1233;  Harrison  v.  Edwards,  12  Vt.  648;  B.  c.,  36  Am.  Dec. 
364:  and  see  Question  15,  supra. 

30.  A.  makes  a  note  payable  to  B.'s  order,  and  B.  indorses  it 
in  blank  in  transferring  it  to  C.     The  note  is  stolen  from  C., 
and  at  maturity  the  thief  presents  it  to  A.,  who  pays.     Must 
he  pay  again  to  C.f 

Not  if  his  payment  was  in  good  faith;  for  the  one  presenting 
it  was  the  bearer,  and  hence  payment  to  him  was  payment  accord- 
ing to  the  tenor  of  the  indorsement.  It  is  another  instance  of  the 
modification  of  ordinary  rules  to  promote  the  convenience  and 
security  of  business  transactions.  Occasional  payments  to  the 
wrong  person  are  better  than  a  requirement  that  the  bearer  must 
always  satisfy  the  debtor  of  his  title.  2  Daniel,  Neg.  Inst.,  §  1230; 
Chitty  on  Bills,  394;  Brennan  v.  Bank,  62  Mich.  343;  Lamb  v.  Mat- 
'thews,  41  Vt.  42. 

Moreover,  all  danger  may  be  avoided  by  indorsing  the  instru- 
ment in  full.  In  that  case,  if  the  debtor  pays  anyone  other  than 
the  indorsee  named,  even  if -the  person  asking  payment  has  posses-' 
sion  of  the  bill -or  note,  he  does  so  at  his  peril.  Doubleday  v.  Kress, 
50  N.  Y.  410;  s.  c.,  10  Am.  Rep.  502. 

c.    Retransfer. 

31.  A.  makes  a  time  note  payable  to  B.'s  order,  which  is  in- 
dorsed to  C.     Before  maturity,  A.  pays  C.  and  takes  the  note. 
Later,  but  still  before  maturity,  he  sells  it  to  D.     The  note 
being  dishonored  when  it  falls  due,  D.  seeks  to  charge  B.  as 
indorser.     Can  he  do  so? 

This  is  not  the  same  case  as  the  one  dealt  with  in  Question  29- 
Here  the  question  is  whether  the  person  primarily  liable  who  has 
"bought  the  paper  before  it  is  due,  can  sell  it  again, — "  reissue  "  it, 
as  it  is  sometimes  called. 


BILLS  AND  NOTES.  55 

The  weight  of  authority  is  thaft  he  can  do  so  and  that  the  bill 
or  note  is  the  same  obligation  in  all  respects  as  before  he  bought 
it,  and  carries  the  same  responsibility  of  the  indorser.  In  short, 
the  arguments  that  such  a  transaction  is  not  a  payment  in  due 
course  and  that  the  indorser  is  bound  only  as  he  expected  to  be, 
have  prevailed.  Morley  v.  Culverwell,  7  M.  &  W.  174;  Rogers  v. 
Gallagher,  49  111.  182;  s.  c.,  95  Am.  Dec.  583,  and  note;  1  Daniel, 
Keg.  Inst.,  §  781b,  and  note. 

Contra,  Central  Bank  v.  Hammett,  50  N.  Y.  158,  holding  that 
one  taking  from  an  acceptor  is  not  a  bona  fide  holder,  because  he 
has  notice  that  in  the  ordinary  course  of  business  it  could  only 
have  been  in  the  possession  of  the  transferor  either  for  acceptance, 
or  after  it  had  been  paid.  To  the  same  effect,  that  the  union  of 
legal  title  with  the  obligation  in  the  one  primarily  liable  extin- 
guishes the  instrument  absolutely,  see  Beebe  v.  Bank,-  4  Ark.  546. 
But  these  cases  seem  to  assume  the  point  at  issue. 

32.  Suppose  a  bill  or  note  dishonored  by  nonpayment  at  ma- 
turity is  paid  by  a  drawer  or  indorser.  Can  he  retransfer  it  so 
that  the  purchaser  can  hold  the  other  parties  whose  names  are  on 
the  instrument? 

Firstly,  the  purchaser  cannot  hold  those  whose  indorsements 
.are  subsequent  to  that  of  the  indorser  who  pays.  See  Questions 
26  and  28,  supra. 

Secondly,  as  a  general  rule,  those  whose  indorsements  are 
prior  can  be  held.  They  are  already  liable  to  the  one  paying, 
as  explained  in  preceding  questions,  by  reason  of  his  having  paid; 
and  it  makes  no  difference  to  them  whether  they  pay  him  or 
his  transferee.  A  bill  or  note  is  still  negotiable  even  after  dis- 
honor. French  v.  Jarvis,  29  Conn.  347;  Cochran  v.  Wheeler,  7  N. 
H.  202;  s.  c.,  26  Am.  Dec.  732;  Callow  v.  Lawrence,  3  Mau'le  & 
Selw.  95. 

Thirdly.  There  are  two  exceptions  to  the  rule  as  stated  in  the 
preceding  paragraph.  If  a  bill  drawn  payable  to  the  order  of 
a  third  person  is  dishonored  and  taken  up  by  the  drawer,  and  then 
transferred,  he  himself  is  the  only  one  the  transferee  can  sue. 
For  it  has  been  said  since  Beck  v.  Robley  (1774),  that  if  it  is  still 
a  bill  so  that  the  transferee  can  sue  the  acceptor,  the  payee  must 
also  continue  liable  on  his  indorsement,  "  for  which  there  is  no 
color."*  Beck  v.  Robley,  1  H.  Blackstone,  89,  note  a;  Gordon  v. 
Maynard,  7  Allen,  456;  s.  c.,  83  Am.  Dec.  699;  Price  v.  Sharp,  2 
Ired.  L.  (N.  Car.)  417,  per  Ruffin,  C.  J. 

The  other  exception  is  where  the  bill  was  accepted  for  the  ac- 
commodation of  the  drawer.  The  transferee  cannot  sue  the  ac- 
ceptor there  on  account  of  the  circuity  of  action;  for  if  he  were 
allowed  to  recover,  the  acceptor  would  have  an  action  against  the 

*  The  courts  do  not  point  out  why  the  transferee,  a  taker  after  maturity,  would  not  b« 
subject  to  the  equitable  defense  by  the  payee  of  discharge  by  the  drawer's  payment. 


56  QUESTIONS  AND  ANSWERS. 

drawer  on  account  of  their  agreement  that  payment  at  maturity 
by  the  accommodated  party  should  be  the  end  of  the  bill.  The 
transferee  taking  after  maturity  would  be  subject  to  this  defense 
by  the  acceptor.  2  Daniel,  Neg.  Inst.,  §  1239;  Lazarus  v.  Cowie, 
3  Q.  B.  459;  s.  c.,  43  E.  C.  L.  819;  Blenn  v.  Lyford,  70  Me.  149. 
The  Negotiable  Instruments  Act  continued  the  law  as  here  stated. 
See  Crawford,  Ann.  Neg.  Inst.  Act,  p.  85. 

VI.     PRESENTMENT  FOR  PAYMENT;    PROTEST,   AND   NOTICE    OF 

DISHONOR. 

a.    Presentment  for  Payment.* 
33.   Why  is  it  necessary  to  present  a  bill  or  note  for  payment? 

In  order  to  hold  the  drawer  or  indorser  in  case  the  acceptor  or 
maker  does  not  pay.  According  to  the  contract  of  the  drawer  or 
indorser,  it  is  a  condition  precedent  to  his  liability  that  demand 
for  payment  shall  be  made  at  maturity,  of  the  person  primarily 
liable.  The  holder  must,  therefore,  do  this  to  hold  those  sec- 
ondarily liable  (though  of  course  it  may  be  waived),  and  the  fact 
that  they  know  the  obligation  is  due  and  unpaid  makes  no  dif- 
ference. Dwight  v.  Scovil,  2  Conn.  654;  Cayuga,  etc.,  v.  "Warden, 
1  N.  Y.  413.  But  see  Question  36,  infra. 

As  a  rule,  presentment  is  not  necessary  to  charge  the  acceptor 
or  maker.  His  engagement  is  absolute  that  the  obligation  shall 
be  paid  at  maturity.  1  Daniel,  Neg.  Inst.,  §  571.  If,  however, 
the  instrument  is  payable  at  a  particular  place,  a  failure  to  make  de- 
mand of  the  debtor  at  that  place  relieves  him  from  paying  interest 
and  costs  provided  he  was  ready  to  pay  at  the  time  and  place  desig- 
nated. Wolcott  v.  Van  Santvoord,  17  Johns.  248;  Parker  v. 
Stroud,  98  N.  Y.  379;  Eldred  v.  Hawes,  4  Conn.  465. 

Whether  presentment  is  a  condition  precedent  to  fix  the  liability 
of  one  who  is  bound  on  the  instrument  as  an  absolute  guarantor 
is  a  mooted  %  question.  The  courts  which  deny  the  necessity  of  de- 
mand and  notice  of  nonpayment  to  hold  a  guarantor  say  that  this  is 
an  absolute  contract  and  that  on  nonpayment  at  maturity  it  is  the 
duty  of  the  guarantor  to  seek  the  holder  and  pay  him.  Brown  v. 
Ourtiss,  2  N.  Y.  225;  Clay  v.  Edgerton,  19  Ohio  St.  549;  s.  c.,  2  Am.  Rep. 
422 ;  Breed  v.  Hillhouse,  7  Conn.  523 ;  City  Bank  v.  Hopson,  53  Conn.  453. 

The  opposing  decisions  hold  that  the  contract  is  collateral,  that  the 
fact  of  nonpayment  is  peculiarly  within  the  knowledge  of  the  guaran- 

*  Presentment  of  a  bill  of  exchange  to  the  drawee  for  acceptance  is  unnecessary  except 
where  the  bill  is  payable  at  sight,  or  a  fixed  time  after  sight  or  after  demand.  2  Ames  on 
Bl  IB  and  Notes,  857  ;  1  Daniel,  Neg.  Inst.,  §  454;  Fall  River  Bank  v.  Willard,  5  Mete.  216. 
Bills  of  the  class  named  must  be  presented  for  acceptance  ''  within  a  reasonable  time," 
r>r  the  drawer  and  indorsers  are  discharged  What  is  a  reasonable  time  depends  on  the 
facts  of  each  case  1  Daniel,  Neg.  Inst.,  §§  454,  465,  466. 

By  the  Negotiable  Instruments  Act,  bills  payable  after  sight  "or  in  any  other  case  where 
presentment  for  acceptance  is  necessary  in  order  to  fix  the  maturity  of  the  instrument t: 
must  be  presented  for  acceptance.  See  Crawford,  Ann.  Neg.  Inst.  Act,  p.  97. 


BILLS  AND  NOTES.  57 

tee,  and  that  the  guarantor  is  entitled  to  require  demand  upon  the 
maker  "  within  a  reasonable  time  and  notice  of  nonpayment  within 
a  reasonable  time."  2  Daniel,  Neg.  Inst,  §  1787;  Oxford  Bank  v. 
Haynes,  8  Pick.  423;  s.  c.,  19'  Am.  Dec.  334  (a  strong  case);  Douglas 
v-.  Reynolds,  7  Pet.  126. 

34.  What  is  a  sufficient  presentment? 

1.  It  must  be  by  the  holder  or  one  duly  authorized  by  him. 
Sussex  Bank  v.  Baldwin,  2  Harr.  (N.  J.)  487;  (compare  Question 
30,  supra). 

2.  To  the  drawee  'or  acceptor  of  a  bill  or  the  maker 'of  a  note  or 
an  authorized  agent,  such  as  the  wife  of  the  obligor  if  present- 
ment is  at  his  residence,  or  a  clerk  if  at  his  place  of  business.    .1 
Daniel,  Neg.  Inst.,  §§  589,  590-  Stewart  v.  Eden,  2  Cai.  (N.  Y.^i 
121;  s.  c.,  2  Am.  Dec.  222. 

3.  On  the  exact  day  of  maturity,  unless  some  legal  excuse  be 
forthcoming.     Griffin  v.  Goff,  12  Johns.  423;  Mechanics'  Bank  v. 
Bank,  6  Met.  13.     See  Question  36,  infra,  for  matters  of  excuse. 

4.  At  a  proper  place.    If  no  place  is  mentioned,  presentment  at 
either  the  ho*me  or  the  place  of  business  of  the  maker  or  acceptor 
is  sufficient.     1  Daniel,  Neg.  Inst.,  §  635;  Cox  v.  Bank,  100  U. 
S.  713.    If  a  particular  place  is  named,  presentment  must  be  made 
there.     1  Daniel,  supra,  and  §  644;  Parker  v.  Stroud,  98  N.  Y. 
379. 

5.  At  a  reasonable  hour;  i.  e.,  during  customary  banking  hours 
if  presentment  is  made  at  a  bank,  or  if  at  a  house,  between  the 
usual  hours  of  rising  and  retiring.     Salt    etc.,  Bank  v.  Burton, 
58  N.  Y.  430;  Dana  v.  Sawyer,  22  Me.  244;  s.  c.,  39  Am.  Dec.  574 
(11:45  p.  m.  too  late  at  house). 

In  the  case  of  Sussex  Bank  v.  Baldwin,  supra,  there  is  a  dis- 
cussion of  several  of  these  requisites,  and  on  the  whole  topic,  see 
1  Daniel,  Neg.  Inst.,  chap.  XX,  especially  §§  571,  572,  575,  590a, 
601,  602,  604,  635,  636. 

35.  X.  holds  two  notes,  one  payable  in.  three  months  from 
January  first,  the  other  payable  on  demand.     Both  are  indorsed. 
On  what  days  should  he  present  these  notes  for  payment  in  order 
to  Charge  the  indorsers  ? 

The  common-law  rule  as  to  time  notes  and  bills  was  that  three 
days  of  grace  should  be  added  to  the  time. named  in  the  instru- 
ment. That  is,  the  day  of  maturity  of  the  first  note  would  be 
April  4th.  1  Daniel,  Neg.  Inst.,  S  614:  Bank  v.  Triplett,  1  Pet. 
25.* 

The  question  of  the  date  on  which  it  is  necessary  to  present  de- 
mand paper  in  order  to  charge  indorsers  is  far  from  settled,  and 

*  Days  of  grace  are  abolished  by  the  Negotiable  Instruments  Act,  and  also  by  statute  in 
severnl  States  which  have  not  yet  edopted  that  Code.  See  Crawford,  Ann.  Negi  Inst.,  p. 
67. 


58  QUESTIONS  AND  ANSWERS. 

a  reference  to  all  the  shades  of  opinion  would  be  beyond  the  scope 
of  this  book.  Distinctions  are  made  between  demand  bills,  notes 
and  checks,  between  simple  demand  notes  and  demand  notes  pay- 
able "  with  interest,"  and  what  not.  See  the  discussion  and  cases 
cited  in  1  Daniel,  Neg.  Inst.,  §§  604-610. 

The  Negotiable  Instruments  Act  provides  that  presentment  must 
be  made  within  a  reasonable  time.  Crawford,  Ann.  Neg.  Inst. 
Act,  p.  61. 

36.  Is  delay  in  making  presentment  ever  excusable? 

Yes.  The  liability  of  the  drawer  or  indorser  is  not  made  to 
'depend  absolutely  upon  presentment  on  the  day  of  maturity,  but 
only  upon  due  diligence  of  the  holder  in  making  presentment. 
Usually  this  means  presentment  on  the  exact  day  of  maturity,  but  an 
allegation  of  due  demand  is  supported  by  proof  that  the  holder, 
being  prevented  by  inevitable  accident  from  presenting  the  in- 
strument for  payment  on  the  day  of  maturity,  made  presentment 
within  a  reasonable  time  thereafter.  Instances  are,  mistake  in 
the  post-office  (Windham  Bank  v.  Norton,  22  Corm.  213);  and 
maturity  falling  between  the  death  of  the  holder  and  appointment 
of  a  personal  representative.  White  v.  Stoddard,  il  Gray,  258. 
And  see  cases  cited  in  vol.  4,  Am.  &  Eng.  Ency.  of  Law  (2d  ed.), 
365. 

b.    Protest. 

37.  What  does  "protest"  mean? 

Protest,  technically  speaking,  is  the  second  formality  which 
must  be  taken  by  the  holder  of  a  certain  kind  of  negotiable  paper 
in  order  to  hold  the  drawer  and  indorsers.  The  proper  method  is 
to  have  a  notary  public  make  presentment  of  the  bill  to  the  drawee, 
and  then,  if  payment  is  refused  (or  acceptance,  if  the  presentment 
be  for  that  purpose),  set  down  under  his  official  hand  the  facts  of 
the  presentment,  reciting  in  full  and  exact  detail  a  fair  descrip- 
tion of  the  bill,  the  reason  for  dishonor,  the  fact  of  protest,  and 
of  compliance  with  all  the  requisites  qf  presentment  explained  in 
the  preceding  section.  The  instrument  thus  made  is  the  "  pro- 
test." Each  necessary  fact  should  be  distinctly  set  forth,  for  the 
document  is  only  evidence  of  what  it  states  on  its  face.  At  common 
law,  protest  can  only  be  used  for  foreign  bills  of  exchange,  but  for 
that  class  of  commercial  paper  it  is  vital;  that  is,  "  it  constitutes  an 
independent  solemnity  essential  to  fix  the  liability  of  a  drawer  or 
indorser  of  a  foreign  bill."  2  Ames,  Bills  and  Notes,  114,  and  cases 
cited.  The  custom  of  merchants  took  this  form  because  this  cer- 
tificate of  a  public  officer  would  provide  the  most  satisfactory  evi- 
dence to  the  drawer,  who,  living  abroad,  could  not  easily  make 
proper  inquiry  into  the  facts  of  dishonor.  2  Daniel,  Neg.  Inst., 
§§  926,  927,  929,  950;  Dennistoun  v.  Stewart,  17  How.  606. 


BILLS  AND  NOTES.  59 

By  statute,  a  similar  proceeding  may  be  taken  to  present  notes 
or  inland  bills,  but  such  presentment  is  not  generally  made  necess- 
ary. 2  Daniel,  N&g.  Inst.,  §  926;  Bryant  v.  Lord,  19  Minn.  396. 
And  see  the  Statutes  of  the  various  States. 


38.  What  is  the  use. made  of  the  protest? 

The  instrument  itself  is  prima  facie  evidence  of  all  the  facts 
which  it  recites,  so  far  as  they  come  within  the  scope  of  the  notary's 
duty;  i.  e.,  to  make  presentment  and  protest.  When  the  protest 
is  of  a  foreign  bill,  the  notarial  act  must  be  produced.  2  Daniel, 
Neg.  Inst.,  §  959;  Townsley  v.  Rumrall,  2  Pet.  170.  When,  how- 
ever, it  is  of  a  note  or  an  inland  bill,  the  instrument  is  at  common 
law  not  even  admissible  as  evidence  of  the  facts  it  recites.  By  the 
statutes  which  permit  protest  of  such  paper,  the  document  gains 
admission,  but  does  not  become  indispensable.  2  Jones  on  Ev., 
.&  557;  Bailey  v.  Dozier,  6  How.  23,  28. 

c.    Notice  of  Dishonor. 

39.  The  holder  of  a  bill  or  note  on  which  there  are  indorsers, 
presents  it  to  the  drawee  or  maker  at  maturity,  and  the  latter  re- 
fuses to  pay  it.     What  further  shall  be  done  to  hold  the  indorsers 
liable? 

Immediate  notice  must  be  sent  to  them  (or  to  the  one  the  holder 
means  to  make  liable  for  payment),  and  this  notice,  though  no 
invariable  form  is  required,  should  include  these  requisites:  (1) 
A  copy  or  such  a  description  of  the  instrument  that  the  indorser 
will  not  be  misled;  Mills  v.  Bank,  11  Wheat.  431;  Gates  v.  Beecher, 
60  N".  Y.  518;  (2)  An  intimation  (not  necessarily  an  express  state- 
ment) that  the  bill  or  note  was  dishonored;  Burgess  v.  Vreeland,  24 
N.  J.  Law,  71;  Youngs  v.  Lee,  12  K  Y.  551;  and  cf.  2  Daniel,  Neg. 
Inst.,  §  983;  (3)  The  notice  should  be  sent  by  the  holder,  or  his 
agent  for  collection,  or  at  least  by  some  party  liable  on  the  bill  or 
note.  2  Daniel,  supra,  §§  987-994;  Woodthorpe  v.  Lawes,  2  M. 
-&•  W.  109;  Brailsford  v.  Williams,  15  Md.  150;  s.  c.,  74  Am.  Dec. 
559.  It  is  not  necessary,  though  formerly  so  laid  down,  to  state 
in  tbe  notice  that  tbe  party  to  whom  it  is  sent  is  looked  to  for  pay- 
ment. Burgess  v.  Vreeland,  supra. 

The  importance  of  sending  a  correct  notice  of  dishonor  is  that 
that  ceremony  is  a  condition  precedent  to  the  liability  of  the 
drawer  or  indorser.  It  is  part  of  his  contract  that  he  shall  not  be 
liable  unless  such  a  notice  is  sent;  and  knowledge  on  his  part, 
through  other  sources,  of  the  fact  of  dishonor  is  of  no  consequence. 
2  Daniel,  supra.  §  970;  Dwight  v.  Scovil,  1  Conn.  654;  Juniata 
Bank  v.  Hale,  16  S.  &  R.  157;  s.  c.,  16  Am.  Dec.  558. 


60  QUESTIONS  AND  ANSWERS. 

40.  When  and  how  must  the  notice  be  sent? 

The  rule  is  that  notice  shall  be  given  within  a  reasonable  time 
after  dishonor;  but  the  definition  of  a  reasonable  time  is  so  exact 
as  to  leave  little  room  for  variation.  By  the  weight  of  authority 
notice  of  dishonor,  when  the  holder  and  the  indorser  to  be  notified 
live  in  different  towns,  must  be  posted  so  as  to  leave  town  not  later 
than  the  first  mail  of  the  day  following  the  day  of  dishonor,  pro- 
vided that  mail  does  not  leave  until  a  convenient  time  after  the 
opening  of  business  hours  to  send  off  the  message.  If  it  doe* 
leave  at  an  inconveniently  early  hour,  then  by  the  next  mail  there- 
after. Burgess  v.  Yreeland,  24  N.  J.  Law,  71 ;  s.  c.,  59  Am.  Rep. 
408;  Smith  v.  Poillon,  87  X.  Y.  590,  597;  2  Daniel,  Xeg.  Inst, 
§§  1039-1041. 

When  the  parties  live  in  the  same  town,  the  limit  of  time  is  fixed 
at  the  end  of  proper  hours  for  doing  business  on  the  day  after  the 
dishonor.  Until  recently,  under  these  circumstances,  the  proper 
method  of  serving  notice  has  been  by  personal  delivery,  but  the 
postal  service  may  be  employed  in  cities  where  house-to-house  de- 
livery is  made,  and  statutes  of  many  States  provide  for  its  use  in  all 
towns.  2  Daniel,  Xeg.  Inst.,  §§  1003,  1008;  4  Am.  &  Eng.  Ency. 
of  Law,  426,  and  cases  cited;  Ransom  v.  Mack,  2  Hill  (X.  Y.),  580; 
s.  c.,  38  Am.  Dec.  602,  and  note;  Eagle  Bank  v.  Hathaway,  5  Met. 
214. 

If  the  accepted  rules  as  laid  down  above  are  followed,  it  is  a 
good  notice  to  the  indorser  whether  actually  received  by  him  or  not; 
and  if,  on  the  other  hand,  some  other  method  of  transmission  be 
adopted  and  the  notice  is  actually  received  within  the  proper  time,  the 
indorser  is  equally  bound;  he  cannot  complain  of  the  means  used. 
2  Daniel,  supra,  §  1003;  Cabot  Bank  v.  Warner,  10  Allen,  524. 

The  Negotiable  Instruments  Act  provides  for  sending  notice  either 
by  delivery  or  by  post,  at  the  option  of  the  sender,  and  limits  the  time 
in  accordance  with  the  rules  above  set  forth.  See  Crawford.  Xeg. 
Inst.  Act,  pp.  72,  75,  76. 


CARRIERS.  61 


CARRIERS. 


I.  CARRIAGE  OF  GOODS. 

a.  In  General. 

1.  What  is  a  common  carrier*  ? 

He  is  one  who  undertakes  for  hire  to  carry  from  place  to  place 
the-' goods  of  anyone  who  chooses  to  employ  him.  Hutchinson  on 
Carriers,!  §  47.  The  undertaking  is  limited  in  its  scope  by  the  pub- 
lic profession  he  makes  of  the  kind  and  quantity  of  goods  he  will 
carry.  This,  each  carrier  determines  for  himself,  when  he  takes  up 
the  business,  but  within  that  line  he  must  act  for  every  one  alike, 
and  is  liable  to  an  action  for  refusal.  Messenger  v.  R.  R.  Co.,  37  N. 
J.  Law,  531,  534;  Tunnel  v.  Pettijohn,  2  Harr.  (Del.)  48;  Hutchin- 
son on  Carriers,  §§  77,  78.  See,  also,  on  the  public  nature  of  the 
calling,  1  Chit.  PI.  136;  Nevin  v.  P.  P.  C.  Co.,  106  111.  222. 

2.  Is  it  necessary  that  a  carrier  should  have  possession  of  the 
property  he  takes  charge  of?  or,  to  illustrate,  is  a  tugboat  .a  com- 
mon carrier  of  its  tow? 

The  decisions  are  not  uniform.  On  the  one  hand,  the  bailment, 
which  is  generally  an  essential  in  the  carriage  of  goods,  is  absent  in 
the  case  suggested;  the  tug  merely  furnishes  motive  power.  See 
Wells  v.  Xav.  Co.,  2  N.  Y.  204;  Trans.  Line  v.  Hope,  95  U.  S.  297, 
which  hold  that  a  towing  line  is  not  a  common  carrier. 

But  on  the  other  hand,  there  is  certainly  a  transportation  and 
in  the  usual  case,  where  the  master  of  the  tug  has  full  control  of 
the  location  and  management  of  his  tow,  there  is  reason  to  con- 
sider the  bailment  sufficiently  complete  and  the  tugboat  a  common 
carrier.  Bussey  v.  Trans.  Co.,  24  La.  Ann.  165.  And  see  Ashmore, 
v.  Steam,  etc.,  Co.,  4  Dutch.  180,  per  Van  Dyke,  J. 

3.  An  express  company  which  sent  the  goods  of  its  patrons 
from  place  to  place  by  means  of  railroad  trains,  steamers  and 
other  vehicles,  set  up  the  fact  that  it  did  not  own  or  control  the 
means  of  conveyance  to  show  that  it  was  not  a  common  carrier. 
Is  this  a  valid  argument? 

No,  it  is  of  no  importance,  ^he  question  is,  what  is  the  service 
they  offer  to  the  public.  The  means  they  choose  to  adopt  do  not 
affect  the  question.  Buckland  v.  Adams  Exp.  Co.,  97  Mass.  124. 

'"Carrier"  in  this  section  is  used  throughout  as  meaning  common  carrier, 
t  References  are  to  the  second  edition  of  Hutchinson  on  Carriers  (I891,t. 


62  •    QUESTIONS  AND  ANSWERS. 

4.  Is  a  sleeping-car  company  a  common  carrier? 

Clearly  not  of  the  passengers,  because  its  undertaking  is  only  to 
furnish  sleeping  accommodations,  not  to  transport  people.  And 
not  of  the  goods  of  its  patrons,  because  there  is  no  bailment.  The 
rule  is  uniform.  Lewis  v.  Car  Co.,  143  Mass.  267;  Woodruff  Co. 
v.  Diehl,  84  Ind.  474. 

b.   Liability  for  Loss. 
1.       IN   GENERAL. 

5.  What  is  the  general  rule  as  to  the  carrier's  liability  for 
goods  lost? 

That  he  is  liable  absolutely;  that  is,  that  the  carrier  is  an  in- 
surer of  the  safety  of  the  goods.  The  reason  usually  assigned  for 
this  harsh  doctrine  is  the  impossibility  of  the  owner's  watching  the 
property  and  the  consequent  danger  of  collusion  between  the 
carrier  and  thieves.  The  two  historic  exceptions  are  (1)  the  act 
of  God  (Eliot  v.  St.  Louis,  etc.,  By.  Co.,  76  Mo.  518);  and  (2)  the 
public  enemy  (Hutchinson  on  Carriers,  170  a,  211);  but  the 
numerous  modern  exceptions  show  the  tendency  to  conform  the 
old  law  to  present  conditions. 

2.      THE  EXCEPTIONS  TO  THE  RULE. 

6.  Which,  if  either,  of  the  following  cases  would  be  included 
under  the  excuse  known  as  "  Act  of  God."     (a)  A  vessel  was 
proceeding  into  harbor  in  a  moderately  heavy  snow  storm.     The 
master  was  misled  by  the  storm  and  by  the  omission  of  some 
third  person  as  to  the  harbor  lights,  and  the  cargo  was  damaged 
by  the  ship's  grounding,      (b)  A  ship  was  passing  through  a 
bridge  when  a  sudden  gust  of  wind  drove  her  against  one  of  the 
piers  and  sunk  her. 

The  question  is,  "  Was  a  human  act  any  part  of  the  proxi- 
jnate  cause? "  In  (a)  the  storm  was  an  act  of  nature,  and 
hence,  strictly  speaking,  an  act  of  God,  but  it  furnishes  no  defense 
to  the  carrier,  because  a  human  agency  (though  that  of  someone 
unconnected  with  the  carrier)  concurred  in  causing  the  loss.  Mc- 
Arthur  v.  Sears,  21  Wend.  190.  In  (b)  the  act  of  God,  i.  e.  the 
unusually  strong  gust,  was  the  sole  cause.  Amies  v.  Stevens.  1 
Strange,  128.  The  carrier  was,  therefore,  excused  in  (b),  and  not 
excused  in  (a). 

7.  Inherent  nature  of  the  good1;  curried.   The  plaintiff  shipped 
hogs  by  defendant's  line.     When  the  train  was  stopped  for  any 
length  of  time  the  animals  crowded  to  the  doors  for  air,  accord- 
ing to  their  natural  tendency,  and  many  were  thereby  smothered. 
Is  the  defendant  liable? 


CAKEIEHS.  63 

No.  The  rule  of  absolute  liability  does  not  extend  to  losses  caused 
by  any  "  inherent  vice  "  of  the  goods  carried,  for  clearly  the  loss  from 
such  causes  is  not  traceable  to  the  carrier  (Kinnick  v.  Chicago,  etc., 
Ry.  Co.,  69  Iowa  665);  but  a  duty  remains,  in  this  case  and  all  other 
exceptions  to  the  insurer's  liability,  to  take  ordinary  care.  Kin- 
nick  v.  R.  R.  Co.,  supra;  Steamboat  Lynx  v.  King,  12  Mo.  272.. 

8.  Act  of  shipper,     (a)  The  shipper  of  a  carriage  insisted  on 
lashing  it  to  the  car  himself.     The  carriage  was  blown  off  en 
route.      (-~b)    The  shipper  packed  his  goods   improperly,   and 
damage  ensued,  partly  before  the  improper  packing  became  evi- 
dent to  the  carrier  and  partly  afterwards,     (c)  The  shipper  sent 
a  letter  by  a  common  carrier  of  letters,  containing  a  valuable 
article  of  a  kind  not  usually  so  sent,  which  he  dfd  not  mention. 
Which  must  bear  the  loss  in  these  cases  ? 

(a)  The  shipper,  having  assumed  to  attend  to  the  fastenings  him- 
self, must  bear  the  loss.     His  own  act  is  part  of  the  legal  cause. 
Miltimore  v.  Chicago,  etc.,  Ry.  Co.,  37  Wis.  190. 

(b)  Such  a  case  modifies  the  doctrine  just  stated.     The  carrier 
is  liable  for  that  part  of  the  loss  occurring  after  the  improper 
packing  is  apparent.     Even  then,  moreover,  he  is  not  bound  to 
his  extraordinary  liability,  but  only  to  use  "  ordinary  care  "  to  pre- 
vent further  damage  from  the  defective   packing.     Union   Exp. 
Co.  v.  Graham,  26  Ohio  St.  595;  Shriver  v.  R.  R.  Co.,  24  Minn.  506. 

(c)  The  shipper  cannot  recover  —  for,  although  the  general  rule 
is  that  the  shipper  need  not  volunteer  information  of  the  contents 
of  a  package  (Phillips  v.  Earle,  8  Pick.  182),  still  it  is  a  fraud  to  send 
goods  so  packed  as  to  seem  to  be  what  they  are  not.     Hayes  v. 

•  Wells,  Fargo  &  Co.,  23  Cal.  185;  R,  R.  Co.  v.  Shea,  66  111.  471. 

9.  Is  a  carrier  excused  for  nondelivery  caused  by  a  seizure 
of  the  goods  under  legal  process? 

Yes.  The  policy  of  the  law  is  strongly  against  any  resistance  to 
an  officer,  and  the  carrier  is  not  to  be  forced  into  making  such 
resistance.  If  the  writ  is  fair  on  its  face,  he  is  justified  in  hand- 
ing over  the  property  (Stiles  v.  Davis,  1  Black  101);  and  this  is  true 
even  if  the  attachment  should  be  under  a  statute  proving  later  to 
be  unconstitutional.  McAllister  v.  R.  R.  Co.,  74  Mo.  351.  Kiff  v. 
R.  R,  Co.,  117  Mass,  591,  contra.  The  rule  is  qualified  by  the  rea- 
sonable requirement  that  the  owner  shall  be  notified.  Bliven  v. 
R.  R.  Co.,  36  N.  Y.  403. 

Analogous  to  the  case  of  attachment  is  that  of  a  surrender  of 
goods  on  demand  of  the  true  owner,  a  course  in  which  the  carrier 
is  clearly  justified.  Bates  v.  Stanton,  1  Duer,  79. 

10.  The  exercise  of  the  right  of  stoppage  in  transitu  forms 
another  excuse  to  the  carrier  for  nondelivery.     Define  that  right. 


64  QUESTIONS  AND  ANSWERS. 

A  vendor  who  discovers  after  forwarding  goods  that  the  con- 
signee is  bankrupt,  has  the  right  to  stop  the  goods  at  any  time 
during  the  "  transitus,"  i.  e.,  before  delivery  to  the  consignee 
or  his  agent.  The  carrier  is  not  only  excused  for  not  delivering 
after  such  notification  from  the  consignor,  but  a  delivery  would  be 
a  conversion.  Reynolds  v.  R.  R.  Co.,  43  N.  H.  580;  Newhall  v. 
Vargas,  13  Me.  93. 

3.       LIABILITY  FOR  DELAY  OR  DEVIATION. 

11.  What  is  the  rule  as  to  delay? 

The  question  is  simply  whether  the  time  occupied  in  the  transit 
is,  under  the  circumstances,  reasonable.  Scovill  v.  Griffith,  12  N. 
Y.  509;  Dawson  v.  R.  R.  Co.,  79  Mo.  296.  A  strike,  for  instance, 
would  excuse  delay,  especially  if  violence  were  used  by  the  strikers, 
but  in  that  case  as  in  every  other,  reasonableness  under  the  circum- 
stances, including  the  question  of  yielding  to  the  strikers'  de- 
mands, is  the  final  test.  Geismer  v.  L.  I.,  etc.,  R.  R.  Co.,  102  N. 
Y.  563;  R.  R.  Co.  v.  Hazen,  84  111.  36. 

12.  Deviation.     A  carrier  left  his  route  to  call  at  his  home, 
about  three  miles  from  the  main  road.     A  bridge  on  the  by-road 
gave  way  and  the  goods  were  injured.      Is  he  liable? 

Yes;  by  a  general  principle  of  law,  that  if  one  interferes  or 
meddles  wifh  another's  property,  he  does  so  at  his  peril.  Powers 
v.  Davenport,  7  Blatchf.  497;  Davis  v.  Garrett,  6  Bing.  716.  If, 
however,  an  emergency,  such  as  a  strike,  arises  so  that  the  carrier 
must  choose  between  a  deviation  from  his  route  and  long  delay 
with  possible  loss,  the  proper  course  is  to  send  the  goods  around 
by  some  other  route,  though  more  roundabout  than  the  regular 
one.  Express  Co.  v.  Kountze  Bros.,  8  Wall.  342;  Steiger  v.  Erie 
R.  R.  Co.,  5  Hun,  345. 

4.       EXPRESS  LIMITATIONS  OF  THE  ABSOLUTE  LIABILITY. 

13.  An  express  company  published  in  a  newspaper,  which 
one  X.  read  regularly,  a  notice  that  it  would  not  be  liable  for 
losses  of  more  than  $50  on  any  package  unless  the  value  was 
stated  when  the  goods  were  sent.     X.,  who  had  never  heard  of 
the  notice,  sent  a  package  worth  $200.     Can  he  recover  the 
value  ? 

Yes:  for  such  notice  must  be  brought  to  the  shipper's  actual 
knowledge.  A  carrier  may  make  reasonable  regulations  and  they 
will  bind  the  shipper,  but,  generally  speaking, they  must  be  brought 
home  to  the  shipper,  as  part  of  the  reasonableness.  Hollister  v. 
Nowlen,  19  Wend.  234;  Judson  v.  Western,  etc.,  Corp.,  6  Allen, 
486. 


CARRIERS.  65 

14.  Can  a  carrier,  by  a  contract  with  the  shipper,  relieve  him' 
self  from  liability  for  negligence? 

By 'the  great  weight  of  authority  in  this  country,  he  cannot.  He 
is  a  public  servant  and  must  be  kept  strictly  to  his  duty,  on  strong 
grounds  of  public  policy.  In  some  courts,  also,  he  is  considered  to 
have  an  unfair  advantage  of  position  in  dealing  with  the  shipper. 
Davidson  v.  Graham,  2  Ohio  St.  131;  R.  R.  Co.  v.  Lockwood,  17 
Wall.  357.  The  contrary  rule  has  been  adopted  in  some  States. 
Maynard  v.  R.  R.  Co.,  71  N.  Y.  180. 

Contracts  are  frequent,  however,  by  which  the  carrier  is  re- 
lieved from  liability  for  loss  not  caused  by  his  negligence  (e.  g.,  by 
pure  accident),  in  return  for  which  a  diminished  rate  of  freight  is 
given.  These  are  everywhere  upheld.  Davidson  v.  Graham, 
supra;  R.  R.  Co.  v.  Morrison,  19  111.  336. 

15.  Suppose  there  is  an  agreement  between  the  carrier  and 
the  shipper  that  in  event  of  loss  the  value  of  the  goods  shall  be 
taJcen  to  be  a  certain  amount.     Is  this  good? 

The  decisions  are  divided,  though  both  sides  insist  that  the  fixed 
valuation  must  be  made  fairly.  In  applying  this,  several  courts, 
headed  by  the  Supreme  Court  of  the  United  States,  take  the  state- 
ment of  value  in  the  bill  of  lading  as  in  all  cages  conclusive. 
Hart  v.  Penn.  R.  R.  Co.,  112  U.  S.  331;  Garves  v.  L.  S.  R,  R.  Co., 
137  Mass.  33.  On  the  other  hand,  by  perhaps  the  weight  of 
authority,  such  contracts  are  only  supported  when  the  value  stated 
actually  approximates  the  true  value.  They  consider  that  other- 
wise the  objections  (of  public  policy)  which  apply  to  contracts 
against  liability  for  negligence  apply  to  these  also,  especially  when 
the  stipulations  of  value  are  "  ironclad,"  i.  e.  in  an  invariable 
printed  form.  Ry.  Co.  v.  Wynn,  88  Tenn.  320;  R.  K.  Co.  v.  Back- 
man,  28  Ohio  St.  144. 

As  to  when  stipulations  in  a  bill  of  lading  will  bind  the  consignor, 
without  regard  to  his  knowledge  of  them,  the  weight  of  authority  is 
that  when  the  shipper  takes  what  he  knows  or  believes  to  be  a  con- 
tract and  does  not  dissent  from  its  terms,  he  is  bound  by  those  terms- 
Lawrence  v.  R.  R.  Co.,  36  Conn.  63;  Kirkland  v.  Dinsmore,  62  N.  Y. 
171.  In  Illinois,  however,  and  some  other  jurisdictions,  it  must  be 
found  as  a  fact  that  the  shipper  gave  assent.  Anchor  Line  v.  Dater, 
68  III.  369;  Seller  v.  S.  S.  "  Pacific,"  1  Ore.  409. 

o.    Delivery  by  the  Carrier. 
1.      TERMINATION   OF   LIABILITY    AS   CARRIER. 

16.  Where  is  the  line  to  be  drawn  which  will  end  the  strict 
liability  of  a  carrier, —  at  actual  delivery  to  the  consignee?  or 
at  ivliat  point? 

This  depends  upon  what  the  carrier  holds  out  to  the  public  as 
his  route;  and  that  varies  of  course  with  different  classes  of  carriers. 

5 


66  QUESTIONS  AND  AXSWEES. 

The  route  of  a  parcel  express  company  clearly  extends  to  the  house 
or  place  of  business  of  the  consignee,  and  something  equivalent  to  a 
personal  delivery  is  necessary  to  end  the  liability  of  the  carrier  as 
such.  The  route  of  a  carrier  like  a  railroad  company,  however,  ex- 
tends only  to  the  freight  station,  and  the  question  then  arises:  Does 
the  special  liability  cease  when  the  train  stops,  when  the  goods  art? 
unloaded,  or  at  what  time  ? 

Opinion  is  evenly  divided  between  the  logical  view,  that  with  such 
a  carrier  the  absolute  liability  lasts  only  until  the  goods  are  placed 
in  a  position  accessible  to  the  consignee  (the  liability  being  there- 
after that  of  a  warehouseman);  Norway  Plains  Co.  v.  R.  R.  Co., 
1  Gray,  263;  Gashweiler  v.  R.  R.  Co.,  83  Mo.  112;  and  the  view 
that  it  lasts  a  "  reasonable  time  "  after  the  goods  are  unloaded. 
R.  R.  Co.  v.  Maris,  16  Kan.  333;  Graves  v.  Steamboat  Co.,  38  Conn. 
143.  New  York  stands  alone  in  requiring  also  notice  to  the  con- 
signee. Faulkner  v.  Hart,  82  N.  Y.  413. 

17.  A  carrier  whose  route  is  from  A.  to  B.,  receives  a  package 
directed  to  C.,  a  point  beyond  his  line.     The  package  is  lost  after 
he  delivers  it  to  the  carrier  running  from  B.  to  C.     Is  he  liable? 

In  other  words,  can  you  prove  a  through  contract  with  the 
first  carrier  by  simply  showing  a  receipt  for  a  package  directed 
as  above? 

The  great  weight  of  authority  in  this  country  is  that  such  a 
receipt  is  not  even  prima  facie  evidence  of  a  through  contract,  but 
that  the  natural  meaning  of  it  is  an  undertaking  to  carry  as  far  as  his 
line  goes  and  deliver  safely  to  the  connecting  line.  Nutting  v. 
R.  R.  Co.,  1  Gray,  502;  Elmore  v.  R.  R.  Co.,  23  Conn.  475.  The 
English  courts,  with  a  small  following  here,  are  contra.  Muschamp 
v.  R.  R.  Co.,  8  M.  &  W.  421;  Mulligan  v.  R.  R.  Co.,  36  Iowa,  181, 

The  carrier  may,  of  course,  contract  specially  for  the  whole  distance, 
either  directly,  by  such  a  clause  as  "goods  to  be  delivered  lit  r."; 
(Hansen  v.  R.  R.  Co.,  73  Wis.  340);  or  indirectly,  as  by  advertising  a 
through  line.  e.  g.  "  Through  freight  for  South  and  West  by  boat 
and  rail."  Clyde  v.  Hubbard,  88  Perm.  St.  358. 

18.  Suppose  the  first  carrier  finds  the  second  unable  to  take 
the  goods  on  account  of  a  press  of  business,  and  they  are  de- 
stroyed by  accidental  fire  while  awaiting  transfer.     Who  is  to 
lose? 

The  first  carrier  loses  unless  the  delay  has  been  go  great  as  to 
justify  warehousing.  The  reasons  for  holding  him  are  that  a?  far  as 
the  shipper  is  concerned  the  goods  are  continually  in  transit  from 
the  time  he  sends  them,  and  as  for  the  carrier,  he  has  not  com- 
pletely performed  his  contract  and  must  reckon  upon  the  conse- 
auences  of  ordinary  delavs.  Goold  v.  Chapin,  20  N.  Y.  259;  Con- 
don v.  R.  R.  Co.,  55  Mich.  218. 


CARRIERS.  67 

2.    DELIVERY  TO  THE  CONSIGNEE. 

19.  Suppose  an  express  company  cannot  find  the  consignee 
immediately,  or  there  is  no  one  at  the  address  to  receive  the 
package.      When  does  its  liability  as  carrier  cease? 

Under  the  general  rule  that  such  a  company  must  give  reason- 
able accommodations  to  the  community,  its  hours  for  delivery  must 
be  within  convenient  hours  for  doing  business;  and  to  find  the  con- 
signee, reasonable  diligence  must  be  used.  Zinn  v.  Steamboat 
Co.,  49  N.  Y.  442. 

If  the  company  observes  these  rules  and  the  consignee  is  still  not 
to  be  found,  it  becomes  an  ordinary  bailee  and  its  duty  is  to  store, 
notifying  the  consignor.  Pelton  v.  R.  R.  Co.,  54  N.  Y.  214; 
O'Rourke  v.  R.  R.  Co.,  44  Iowa,  526.  And  see  Stone  v.  Waitt,  31 
Me.  409. 

20.  Does  the  consignor  or  the  consignee  have  control  of  the 
disposal  of  the  goods  during  the  transit;  or  in  other  words,  what 
assumption  may  the  carrier  safely  make  as  to  the  title? 

In  the  common  case,  the  title  passes  to  the  consignee  when  the 
goods  are  delivered  to  the  carrier.  Unless,  therefore,  there  is  some- 
thing to  show  the  carrier  that  there  is  a  restriction  on  its  passing, 
he  is  bound  to  follow  the  orders  of  the  consignee,  and  a  delivery 
which  is  good  as  between  him  and  the  consignee  furnishes'  a  good 
defense  against  an  action  by  the  consignor.  Sweet  v.  Barney,  23 
N.  Y.  335;  Armentrout  v.  R.  R.  Co.,  1  Mo.  App.  158.  And  see 
Cork  Distilleries  Co.  v.  R.  R.  Co.,  L.  R.  7  H.  L.  269;  s.  c.,  10  Eng. 
Rep.  25. 

21.  A  swindler  in  the  town  of  X.  assumed  the  name  of  J. 
Smith,  and  sent  an  order  in  that  name  to  the  plaintiff.     There 
was  a  John  Smith  in  the  same  town,  a  reputable  dealer,  and 
known  to  the  plaintiff.     The  plaintiff  sent  the  goods  addressed 
to  J.  Smith,  and  the  defendant  carrier  delivered  to  the  swindler. 
Is  defendant  liable? 

No.  The  carrier  is  to  deliver  to  the  person  to  whom  the  con- 
signor actually  sent  the  goods.  Here,  of  course,  the  consignee  really 
intended  was  the  swindler,  because  he  gave  the  order.  The  de- 
livery to  him  is  therefore  the  only  proper  one.  Samuel  v.  Cheney, 
135  Mass.  278;  Wernwag  v.  R.  R.  Co.,  117  Penn.  St.  46.  Price  v. 
]?..  T«.  Co..  oO  X.  Y.  213:  is  contra,  but  stands  almost  alone. 

The  rule  as  to  delivery  is  strict.  If  by  mistake,  even  after  the 
utmost  care,  the  goods  are  delivered  to  some  other  person  than  the 
one  intended  by  the  shipper,  it  is  a  misdelivery  for  which  the  car- 
rier must  answer.  Powell  v.  Myers,  26  Wend.  591;  Am.  Exp. 
Co.  v.  Stack,  29  Ind.  27. 


68  QUESTIONS  AND  ANSWERS. 

d.     Remedies. 
1.      AGAINST  THE  CARRIER. 

22.  Who  is  the  proper  plaintiff  in  an  action  against  a  car- 
rier? and  what  is  the  form  of  action? 

On  these  questions  courts  have  differed.  One  class  of  cases,  led 
by  Davis  v.  Peck,  8  T.  K,  330,  and  Krulder  v.  Ellison,  47  N.  Y.  36, 
hold  that  the  question  turns  simply  on  whether  the  title  has 
passed  to  the  consignee  or  not. 

Another  class,  led  by  Blanchard  v.  Page,  8  Gray,  281,  allow  the 
consignor  to  sue  without  regard  to  the  title  to  the  goods,  basing 
the  action  on  the  so-called  contractual  relation  raised  by  the  duty  to 
carry  imposed  by  law  on  the  carrier,  and  the  reciprocal  duty  to 
pay  a  reasonable  price  imposed  on  the  one  offering  the  goods. 
See  Hutchinson  on  Carriers,  §§  728-748,  and  Hooper  v.  R.  R.  Co.,  27 
Wis.  81,  90.  It  is  hardly  necessary  to  add,  that  where  either  of  the 
two  parties  is  allowed  to  sue,  a  recovery  by  one  frees  the  carrier 
from  further  liability. 

The  form  of  action  has  become  comparatively  unimportant  from 
the  statutory  destruction  of  common-law  pleading,  but  probably  its 
real  substance  is  in  tort,  for  violation  of  a  duty  imposed  by  law,  as 
witness  the  success  of  suits  by  passengers  injured  on  Sunday.  Car- 
roll v.  R.  R.  Co.,  58  N.  Y.  126,  134. 

23.  Which  side  has  the  burden  of  proof  in  a  suit  against  a 
carrier  ? 

The  carrier  has  it,  both  in  cases  where  the  common-law  excep- 
tions are  the  only  ones  relied  upon  to  excuse  a  loss,  and  in  cases 
where  b}r  special  contract  he  is  liable  only  for  negligence.  This  is 
probably  because  originally  all  bailees  were  accountants;  i.  e.,  bound 
to  give  an  account  for  the  goods  or  make  a  valid  excuse.  Shriver  v. 
R.  R.  Co.,  24  Minn.  506;  R.  R.  Co.  v.  Lockwood,  17  Wall.  357,  376. 
Another  reason  given  is  that  the  loss  is  prima  facie  evidence  of 
negligence.  Canfield  v.  R.  R.  Co.,  93  N.  Y.  532. 

A  distinction  should  be  observed  between  the  cases  above  noticed 
and  those  where  the  fault  charged  is  negligence  in  the  care  of 
goods  after  they  have  been  damaged  by  an  act  of  God.  There, 
the  plaintiff  clearly  has  the  burden  of  proof.  Trans.  Co.  v.  Dow- 
ner, 11  Wall.  129. 

2.     THE  CARRIER'S  COMPENSATION. 

24.  Goods  are  shipped  on  a  contract  to  carry  from  Boston  to 
Baltimore.     When  does  the  right  to  the  freight  accrue  under 
the  contract?  and  who  is  liable  therefor? 

It  accrues  on  the  safe  delivery  to  the  consignee,  because  a  con- 
tract of  carriage  includes  such  delivery.  If  the  contract  is  entire, 


CARRIERS.  69 

the  goods  must  actually  arrive,  and  substantially  in  specie,  or  no 
freight  whatever  is  due;  but  if  it  is  divisible,  e.  g._.  one  thousand 
bushels  of  wheat  at  so  much  per  bushel,  the  freight  must  be  paid  pro 
rata  on  what  arrives.  Say  ward  v.  Stevens,  69  Mass.  97;  Barnes  v. 
Marshall,  18  Ad.  &  El.  785;  Angell  on  Carriers  (4th  ed.),  §  398. 

If  freight  is  prepaid  and  the  voyage  is  not  fully  performed 
the  money  must  be  refunded.  Griggs  v.  Austin,  3  Pick.  20;  Angell 
on  Carriers,  §  399,  note,  and  cases. 

It  has  long  been  settled  that  though  the  carrier  can  insist  on 
prepayment  (Fitch  v.  Newberry,  1  Doug.  [Mich.]  1;  s.  c.,  40  Am. 
Dec.  33),  or  can  hold  the  goods  by  a  lien  for  his  freight,  he  need  not 
do  so,  but  may  deliver  them  and  rely  on  payment  by  the  consignor. 
Shepard  v.  De  Bernales,  13  East,  565;  AYooster  v.  Tarr,  8  Allen, 
270.  By  acceptance  of  the  goods,  the  consignee  or  the  indorsee  of 
the  bill  of  lading  also  becomes  liable,  the  consideration  on  the 
carrier's  part  being  the  giving  up  of  his  lien.  Merian  v.  Funck, 

4  Denio,  110;  Cock  v.  Taylor,  13  East,  399. 

25.   What  is  the  extent  of  the  carrier's  lien? 

This  may,  perhaps,  be  best  answered  by  first  stating  some  charges 
the  lien  does  not  cover,  namely:  (1)  Charges  for  demurrage. 
Crommelm  v.  E.  R.  Co.,  4  Keyes  (N.  Y.),  90;  R.  R.  Co.  v.  Jenkins, 
103  111.  588.  Refusal  by  the  owner  to  pay  these  charges  is  simply 
a  breach  of  contract  and  not  a  ground  for  holding  by  lien,  no  labor 
having  been  bestowed  on  the  goods  by  reason  of  the  delay.  (2) 
Charges  on  other  shipments  by  the  same  party,  i.  e.,  on  a  general 
account.  Rushforth  v.  Hadfield,  7  East,  224. 

On  the  other  hand,  the  lien  being  bestowed  by  law  as  a  balance  to 
the  duty  imposed  on  carriers  to  serve  all  comers,  at  all  times,  the 
law  extends  it  to  all  fair  charges  for  services  by  the  carrier  as  such, 
and  makes  it  paramount.  It  includes  payments  bv  the  last  carrier 
of  a  series  to  former  carriers  for  their  labor,  (Wells  v.  Thomas, 
27  Mo.  17;  Briggs  v.  R.  R.  Co.,  6  Allen,  246;  .Knight  v.  R.  R. 
Co.,  13  R.  I.  572);  supersedes  even  the  right  of  stoppage  in 
transitu,  (Potts  v.  R.  R.  Co.,  131  Mass.  455:  R,  R. 
Co.  v.  Amer.  Oil  Works,  126  Penn.  St.  485,  494);  and  has  been 
held  in  England  available  against  the  true  owner,  though  the  ship- 
ment was  without  his  consent.  York  v.  Greenough,  2  Ld.  Raym. 
866;  Hutchinson  on  Carriers,  §§  489,  490.  As  to  the  last  case,  how- 
ever, though  seemingly  it  is  supportable  on  the  ground  of  the  com- 
pulsory nature  of  the  carrier's  duty,  the  entire  current  of  American 
decision  is  contra,  on  the  ground  that  the  carrier  has  no  duty 
to  carry  goods  for  a  thief  and  must  investigate  the  title  as  much  as 
anyone  else  dealing  with  the  property.  Fitch  v.  Newberry,  1  Doug. 
(Mich.)  1;  Bassett  v.  Spofford,  45  N.  Y.  387;  Robinson  v.  Baker. 

5  Cush.  137.    And  see  Question  9  in  the  section  on  Personal  Prop- 
erty. 


:0  QUESTIONS  AND  ANSWERS. 

26.  Suppose  a  proper  and  reasonable  rate  for  carrying  a 
certain  amount  of  freight  is  one  hundred  dollars.     A  carrier 
performs  the  service  occasionally  for  X.  for  seventy-five  dollars. 
Is  th  is  a  ground  for  other  shippers  to  complain  ?     Would  it  alter 
the  question  if  a  large  proportion  of  shippers  paid  onJy  the 
lower  rate? 

A  New  Jersey  case  (Messenger  v.  E.  E.  Co.,  36  N.  J.  Law,  407) 
goes  so  far  as  to  hold  that  the  lowest  rate  given  to  any  one  shipper 
is  the  only  measure  of  what  is  a  reasonable  rate.  But  E.  E.  Co.  v. 
Gage,  12  Gray,  393,  going  to  the  other  extreme,  stands  for  the 
ruling  that  so  long  as  the  higher  rate  is  not  in  fact  an  unreason- 
able charge  for  the  service  rendered,  the  carrier  may  charge  it  to 
one  person  alone,  no  matter  how  high  it  is,  as  compared  with  that 
charged  to  others. 

The  true  rule  lies  between  and  seems  to  be  this:  A  low  rate 
to  one  or  two  persons  is  some  evidence  that  the  one  paid  by  the 
other  shippers  is  too  high.  And  when  it  is  found  that  a  large  pro- 
portion of  the  business,  reckoned  either  by  the  number  of  shippers, 
or  the  volume  of  freight  carried,  is  done  at  the  lower  rate,  it  is  con- 
clusive evidence  that  the  lower  rate  is  the  only  reasonable  one. 
Schofield  v.  E.  E.  Co.,  43  Ohio  St.  571;  E,  E.  Co.  v.  The  People, 
67  111.  11,  22.  Cf.  Bagan  v.  Aiken,  9  Lea  (Tenn.),  609:  Mc- 
Duffee  v.  E.  E.  Co.,  52  N.  H.  420,  438-440;  Hays  v.  E.  E.  Co.,  12 
Fed.  Eep.  309. 

e.    Miscellaneous  Topics. 

27.  Explain  the  threefold  character  of  the  bill  of  lading. 

This  document,  which  is  a  "  written  acknowledgment  signed  by 
the  carrier,  that  he  has  received  the  goods  therein  described  from 
the  shipper,  to  be  transported  on  the  terms  therein  expressed,  to 
the  described  place  of  destination  and  there  delivered,"  is  (1)  a 
contract.  As  such  it  is  subject  to  the  rule  against  contradiction  of 
its  terms  by  parol,  and  to  the  other  usual  rules  applying  to  such 
instruments.  The  Delaware,  14  Wall.  579.  (2)  It  is  a  receipt, 
showing  so  many  goods  in  such  and  such  condition.  As  a  receipt 
it  is  open  to  explanation  (O'Brien  v.  Gilchrist,  34  Me.  554);  but 
not  as  to  third  parties  who  have  seen  and  relied  on  its  terms. 
Relyea  v.  Mill  Co.,  42  Conn.  579.  (3)  The  third  function  of  the 
bill  of  lading  is  its  representative  one.  It  stands  for  the  goods  in 
transit,  and  is  treated  as  the  goods  for  many  purposes,  such  as  sale 
of  them  before  arrival.  Relyea  v.  Mill  Co.,  supra;  Shaw  v.  E.  E. 
Co.,  101  U.  S.  557. 

28.  As  to  carriage  at  sea;  state  the  position  of  the  master  of 
a  vessel. 

The  master  occupies  the  unusual  situation  of  representing  three 
interests  at  once,  those  of  the  owner  of  the  ship,  the  owner  of  the 


CAEKIEKS.  71 

freight  and  the  owner  of  the  goods.  He  is  a  fiduciary  towards  all 
three.  If  a  moral  necessity  for  doing  so  actually  exists,  he  can  even 
sell  the  cargo,  passing  good  title,  to  get  money  to  repair  the  ship. 
Star  of  Hope,  9  Wall.  *03,  237;  The  Gratitudine,  3  C.  Robinson,  240, 
255.  And  in  general  he  must  act  for  the  benefit  of  all  three  in- 
terests. De  Cuadra  v.  Swann,  16  C.  B.  (N.  S.)  772;  The  Velona, 
3»Ware,  130;  Butter  v.  Murray,  30  N.  Y.  88. 

29.  In  what  respect  is  a  maritime  lien  peculiar? 

Such  a  lien  is  practically  an  acquisition  of  an  interest  in  the 
ship  itself;  and  the  last  lien  gained  is,  therefore,  paramount. 
Thus,  for  example,  money  lent  for  repairs  at  an  intermediate  port 
is  really  invested  in  the  ship,  so  that  charges  for  salvage  services 
rendered  thereafter  are  properly  made  against  the  money  lender 
(together  with  the  other  owners),  i.  e.,  against  one  having  a 
""  prior  "  lien.  Cargo  ex  Galam,  9  Law  Times  Rep.  550;  Abbott  on 
Shipping,  pp.  117,  594-595. 

30.  What  is  "general  average;"  and  when  does  it  attach? 

General  average  amounts  to  this:  That  sometimes,  when  one  of 
the  three  interests  involved,  i.  e.,  freight,  cargo  or  ship,  has  suf- 
fered a  loss,  a  proportionate  part  of  this  loss  is  shouldered  by  the 
other  interests.  The  three  conditions  necessary  for  such  a  divi- 
sion are  well  stated  in  Barnard  v.  Adams,  10  How.  270,  303. 
There  must  be  (1)  a  danger  common  to  the  crew,  the  ship  and 
the  cargo,  so  imminent  that  destruction  seems  inevitable;  (2) 
a  voluntary  sacrifice  of  some  part  of  the  joint  concern,  i.  e.,  a  shift- 
ing of  the  danger  from  the  whole  to  the  particular  part  selected  for 
sacrifice;  and  (3)  the  attempt  to  avert  destruction  must  be  success- 
ful. See  also  Birkley  v.  Presgrave,  1  East,  220,  228;  Scudder  v. 
Bradford,  31  Mass.  13.  Cf.  Bradhurst  v.  Ins.  Co.,  9  Johns.  9  (a 
lonely  decision). 

31.  What  is  salvage? 

"  A  salvor  is  one  who,  as  a  volunteer,  assists  a  ship  in  distress." 
Abbott  on  Shipping,  pp.  536,  539.  If  the  one  rendering  the  service 
is  already  under  a  duty  to  afford  this  assistance,  he  is  not  a  volun- 
teer; a  sailor  or  a  pilot,  for  example,  could  hardly  ever  be  so  classed. 
Lea  v.  Ship  Alexander,  2  Paine  (U.  S.),  472.  Again,  the  assist- 
ance rendered  must  be  effectual,  so  far  as  it  goes.  The  Blackwall, 
10  Wall.  1,  12. 

The  amount  granted  to  salvors  for  their  help  rests  largely  in 
the  discretion  of  the  court,  the  leading  considerations  governing 
the  award  being  the  nearness  of  the  danger  which  threatened  the 
ship,  the  peril  incurred  by  the  salvors,  the  amount  of  time  spent, 
and  the  value  of  the  goods  saved.  The  Blackwall,  10  Wall.,  supra; 
The  Rialto,  15  Fed.  Rep.  124. 


72  QUESTIONS  AND  ANSWERS. 

II.     CARRIAGE  OF  PASSENGERS. 

a.     "Who  ore  Passengers. 

32.  Passenger  carriers  are  in  the  exercise  of  a  public  calling 
like  carriers  of  goods,  and  subject,  like  them,  to  an  action  for 
refusal  to  serve  anyone  who  wishes  to  employ  them.     Are  there 
any  exceptions? 

Yes.  The  carrier  has  a  right,  and  indeed  a  duty,  to  eject 
from  its  vehicles  or  exclude  altogether  (1)  persons  likely  to  cause 
annoyance  or  danger  to  other  passengers.  This  is  from  the  obli- 
gation to  provide  for  the  comfort  of  the  public.  Vinton  v.  R. 
R  Co.,  11  Allen,  304;  Putnam  v.  Street  Ry.  Co.,  55  N.  Y.  108, 
The  carrier  may  refuse  (2)  persons  not  really  wishing  to  go  from 
place  to  place.  The  duty  to  serve  is  only  to  bona  fide  travelers.  A 
person,  for  instance,  who  goes  on  board  a  conveyance  to  ply  his  trade 
does  not  go  there  in  order  to  reach  any  particular  place.  The  D.  R. 
Martin,  11  Blatchf.  233.  (3)  Persons  intending  some  illegal  act  on 
the  journey,  such  as  gambling.  Thurston  v.  R.  R,  Co.,  4  Dill. 
321.  (4)  Persons  securing  transportation  by  fraud,  e.  g.,  either 
by  collusion  with  some  employee  or  by  concealment.  Way  v.  R. 
R.  Co.,  64  Iowa,  48;  R.  R,  Co.  v.  Brooks,  81  111.  245. 

33.  A   railroad  company  carries  some  persons  without  ex- 
pecting or  demanding  compensation,  such  as  its  workmen  on  a 
gravel  train  or  people  riding  on  free  passes.     What  relation  does 
it  bear  to  them? 

Neither  are  passengers,  legally  speaking.  The  workmen  have 
a  license  to  ride,  but  if  they  are  injured,  even  by  the  engineer's- 
negligence,  the  company  is  not  liable.  The  relation  is  master 
and  servant,  and  the  servant  takes  the  risks  of  the  employment. 
Gilshannon  v.  R.  R.  Co.,  64  Mass.  228;  Ryan  v.  R.  R.  Co.,  23'Penn. 
St.  384. 

As  to  persons  riding  on  free  passes  there  is  a  conflict  of  au- 
thority. Such  passes  generally  contain  a  release  of  the  company 
from  any  liability,  and  they  are  sustained  by  some  courts  on  the 
ground  that  the  carrier  is  not  acting  as  a  public  carrier,  but  as  a 
gratuitous  bailee,  and  may  make  any  arrangement  satisfactory  to 
the  holder  of  the  pass.  Quimby  v.  R.  R.  Co.,  150  Mass.  365;  Gris- 
wold  v.  R.  R.  Co.,  53  Conn.  371.  The  opposing  decisions  deny 
the  carrier's  right  to  throw  off  his  character  of  public  servant,  on 
the  ground  that  freedom  from  liability  in  such  cases  would  tend 
to  lessen  the  care  necessary  for  properly  conducting  the  business 
and  so  endanger  the  other  travelers.  Jacobus  v.  Ry.  Co.,  20  Minn. 
125;  R,  R.  Co.  v.  McGown,  65  Tex.  640. 

The  above  cases  of  strictly  free  passes  should  be  carefully  dis- 
tinguished from  those  like  R.  R.  Co.  v.  Stevens,  95  IT.  S.  655,  where 
the  passenger,  though  on  a  pass  in  the  usual  form,  had  contracted 
to  make  some  investigations  for  the  company  in  Montreal,  and  they 


CABEIEBS.  1 3 

had  agreed  to  pay  his  expenses.  There  the  clause  limiting  the  com- 
pany's liability  was  clearly  invalid,  the  carriage  not  being  gratuitous 
in  any  sense. 

b.    Liability  to  Passengers  for  Injury.* 

34.  So  far  as  care  to  secure  the  safety  of  the  passenger  is  con- 
cerned, under  what  circumstances  is  the  carrier  liable? 

He  is  liable  for  any  injury  partly  or  wholly  caused  by  a  failure 
to  take  the  utmost  care  possible  in  providing  any  of  the  appliances 
incidental  to  his  service  as  a  carrier.  For  a  railroad  these  would 
include  the  roadbed  (Gleeson  v.  R.  R.  Co.,  140  U.  S.  435),  as  well 
as  the  carriages  themselves  (Meier  v.  Penn.  R.  R.  Co.,  64  Penn.  St. 
225),  and  servants.  Hall  v.  Steamboat  Co.,  13  Conn.  319.  The 
question  is,  not  whether  it  was  scientifically  possible  for  any  one 
in  the  process  of  making  to  discover  the  defect  in  the  machinery, 
but  whether  it  was  practically  possible  by  human  care  and  fore- 
sight; and,  subject  to  this  explanation,  the  prevailing  rule  is  that 
the  carrier  is  a  warrantor  of  the  soundness  and  reliability  of  his 
appliances.  Sharp  v.  Grey,  9  Bing.  457,  and  cases  supra. 

There  is  some  authority,  however,  which  limits  the  liability  to 
injuries  arising  from  defects  discoverable  by  external  examination, 
i.  e.,  that  the  warranty  does  not  extend  to  the  work  done  by  others 
than  the  company,  provided  the  manufacturers  of  the  appliances 
have  been  selected  for  their  known  skill.  Ingalls  v.  Bills,  50  Mass. 
1;  Alden  v.  R.  R.  Co.,  26  N.  Y.  102. 

35.  The  preceding  question  would  include  any  liability  from 
the  negligence  of  servants  of  a  railroad  company  or  other  car- 
rier, but  carriers  are  liable  also  for  acts  of  servants  which  are. 
wilfully  wrong  and  for  many  trespasses  by  other  passengers. 
How  far  does  this  extend,  and  on  what  principle  is  it  based? 

The  liability  rests  on  the  duty  of  a  common  carrier,  as  such,  to 
treat  the  passenger  respectfully  and  protect  him  from  violence,  and 
its  existence  is  unquestioned.  The  company  intrusts  the  manage- 
ment of  its  conveyances  to  conductors  and  other  employees  and 
must  respond  in  damages  for  their  violations  of  the  duty  referred  to. 
Goddard  v.  R.  R.  Co..  57  Me.  202;  R.  R.  Co  v.  Flexman,'l03  111.  546. 
The  liability  for  injuries  to  travelers  from  other  passengers  rests 
on  the  same  principle.  Putnam  v.  Street  Ry.  Co.,  55  N.  Y.  108. 

c.     Baggage. 

36.  What  is  baggage,  legally  considered? 

It  is  anything  the  passenger  may  reasonably  need  to  carry  for 
personal  use  and  convenience  on  that  journey,  taking  into  conside- 

•  As  the  usual  rules  of  contributory  and  imputed  negligence  are  not  varied  when 
carriers  are  involved,  it  is  unnecessary  to  add  here  to  the  full  discussion  of  them  under 
the  subject  of  Torts. 


74  QUESTIONS  AND  ANSWEKS. 

ration  its  ultimate  purpose,  the  articles  which  persons  of  the  same 
class  ordinarily  carry  on  similar  journeys  and  other  elements. 
Many  difficult  and  interesting  questions  arise,  but  the  above  defini- 
tion is,  perhaps,  sufficiently  comprehensive.  K.  R.  Co.  v.  Fraloff, 
100  U.  S.  24;  Bank  v.  Brown,  9  Wend.  85.  See  on  the  whole  sub- 
ject of  baggage,  Macrow  v.  R.  R.  Co.,  L.  R.  6  Q.  B.  612. 

The  tools  of  a  watchmaker,  carried  to  be  used  when  he  found  em- 
ployment, are  baggage,  (R.  E.  Co.  v.  Morrison,  34  Kan.  502);  and  a 
man's  baggage  may  properly  include  things  belonging  to  his  wife. 
Dexter  v.  R.  R.  Co.,  42  N.  Y.  (3  Hand)  326.  Bicycles  have  been  on  the 
line,  but  they  are  close  to  guns  or  fishing  rods  which  may  clearly  be 
baggage,  and  probably  usage,  through  which  anything  may  become 
baggage,  has  gone  far  enough  now  to  include  them.  State  ex  rel. 
Bettis  v.  Mo.  Pac.  R.  R.  Co.,  reported  43  Cent.  L.  J.  377.  See,  on 
guns  and  the  like,  Hawkins  v.  Hoffman,  6  Hill,  586;  and  on  bicycles, 
43  Cent.  L.  J.,  supra,  and  12  Harv.  Law  Rev.  119  (1898.) 

It  should  further  be  noted  that,  although  the  carrier  cannot  refuse 
to  carry  any  armies  for  the  passenger  which  are  properly  taken  with 
him  as  baggage,  it  does  not  follow  that  it  is  unreasonable  for  him 
to  charge  for  "  overweight." 

37.  Suppose  a  man  sends  his  trunk  a  day  ahead,  and  it  is 
destroyed  or  lost.       Can  he  recover? 

He  cannot.  The  contract  of  the  railroad  company  is  not 
to  carry  a  trunk  and  a  passanger,  but  a  trunk  with  a  passenger. 
Historically  considered,  this  is  plainly  true,  since  originally  the 
baggage  was  brought  in  the  hands  of  the  passenger. 

Therefore,  if  one  sends  his  trunk  to  the  station  more  than  a 
reasonable  time  before  he  himself  intends  to  leave,  it  is  a  fraud  on 
the  company,  and  the  latter  is  liable  only  for  wilful  injury.  Wil- 
son v.  R.  R.  Co.,  56  Me.  60,  57  Me.  138;  Beers  v.  B.  &  A.  R.  R. 
Co.,  67  Conn.  417  (1896) ;  Marshall  v.  Pontiac,  etc.,  R.  R.  Co., 
126  Mich.  45. 

38.  What  is  the  extent  of  the  liability  of  the  carrier  for  bag- 
gage intrusted  to  his  care;  and  what  is  his  duty  towards  articles 
retained  in  the  passenger's  possession? 

His  liability  for  baggage  taken  into  his  possession  is  that  of 
a  carrier  of  goods.  Ouimit  v.  Henshaw,  35  Vt.  605.  But  as  to 
the  articles  of  baggage  retained  by  the  passenger,  the  rule  is  that 
the  company  is  liable  only  for  negligence  by  itself  or  its  agents. 
Kinsley  v.  R.  R.  Co.,  125* Mass.  54;  Henderson  v.  R.  R.  Co.,  123 
U.  S.  61. 

d.    Tickets  and  Regulations. 

39.  What  is  the  general  nature  of  a  ticket? 

By  issuing  a  ticket  a  carrier  agrees  to  accept  it  in  lieu  of  a 
money  payment  of  fare,  if  it  is  used  in  compliance  with  prescribed 


CARRIERS.  75 

conditions.  It  is  a  formal  contract,  and  unless  otherwise  provided, 
it  is  freely  transferable  (Carsten  v.  R.  R.  Co.,  44  Minn.  454);  hence 
it  is  good  in  the  hands  of  any  bona  fide  holder. 

Any  regulations,  regarding  its  use  as  a  means  of  paying  fare, 
which  appear  on  it  or  are  usual  in  tickets  of  its  class,  are  part  of 
the  contract.  Examples  are  restrictions  as  to  stopping  over,  or  as 
to  signing  by  the  purchaser.  Cheney  v.  R.  R.  Co.,  11  JVlet.  121; 
Boylan  v.  R.  R.  Co.,  132  U.  S.  146. 

All  carriers  have  the  right  to  demand  compensation  in  advance,  and 
fare  is,  therefore,  due  on  tne  passenger's  entering  the  train;  the  ticket, 
if  demanded,  must  then  be  given  up.  A.  neat  case  in  illustration  is 
Auerbach  v.  R.  R,  Co.,  89  N.  Y.  281,  where  a  ticket  expired  at  12 
o'clock.  The  train  was  boarded  at  11:40,  but  the  ticket  was  held,  to  be 
good  for  fare  on  the  whole  journey.  To  the  same  effect  is  Lundy  v. 
R.  R.  Co.,  66  Cal.  191. 

40.  Is  the  rule  reasonable  by  which  a  higher  price  is  charged 
for  fare  when  paid  on  the  train  than  when  a  ticket  is  bought  at 
the  station? 

Perfectly.  The  delay  and  difficulty  of  receiving  fares  and  making 
change  en  route,  the  possible  loss  to  the  road  from  the  dishonesty 
of  conductors,  and  the  convenience  of  the  traveling  public  all  go 
to  show  the  reasonableness  of  the  regulation,  and  it  is  uniformly 
upheld.  Swan  v.  R.  R.  Co.,  132  Mass.  116;  R.  R.  Co.  v.  Rogers, 
28  Ind.  1. 

The  necessary  qualification  on  such  a  rule  is  that  the  passenger 
shall  have  a  reasonable  opportunity  to  purchase  his  ticket  at  the 
station  before  the  train  leaves;  what  is  such  reasonable  time  de- 
pending on  the  character  of  the  station,  the  number  of  people  who 
have  occasion  to  get  tickets  there  and  similar  considerations.  R. 
E.  Co.  v.  Rogers,  supra;  Everett  v.  R.  R.  Co.,  69  Iowa,  15. 

41.  It  being  admitted  that  a  person  refusing  to  pay  fare  on  a 
train  can  be  ejected,  can  the  traveler,  after  such  refusal,  by  ten- 
dering the  fare,  compel  the  company  to  carry  him  along  on  the 
same  train? 

It  is  well  settled  that  the  company  may  refuse  to  receive  him 
on  the  train,  if  he  is  actually  put  off.  and  the  rule  is  considered  a 
salutary  one.  O'Brien  v.  R,  R.  Co.,  15  Gray,  20;  State  v.  Campbell, 
3  Yroom.  309. 

The  carrier  is  probably  equally  safe  in  declining  to  carry  him 
along  on  that  train  in  the  case  where  the  tender  is  made  before  an 
actual  ejectment,  especially  if  the  train  has  been  stopped  for  the  pur- 
pose, for  the  inconvenience  and  danger  to  other  passengers  are  the 
?ame.  and  otherwise  the  power  to  eject  would  prove  much  less  use- 
ful. Skillman  v.  R.  R.  Co.,  39  OhioSt.  444;  O'Brien  v.  R.  R.  Co.,  80 
N.  Y.  236. 


76  QUESTIONS  AND  AXSWEPS. 


CONSTITUTIONAL  LAW. 


I.     "  CITIZENS  "  AND  "  PERSONS." 

1.  Is  a  corporation  a  citizen  within  article  four,  section  twot 
of  the  United  States  Constitution,  and  what  does  that  section- 
provide  ? 

The  provision  of  section  two  of  that  article  is  that  "  The  citizens 
of  each  State  shall  be  entitled  to  all  privileges  and  immunities  of 
citizens  of  the  several  States."  "  The  term  '  citizen '  as  used  in  the 
clause  applies  only  to  natural  persons,  members  of  the  body  politic 
owing  allegiance  to  the  State,  not  to  artificial  persons  created  by 
the  legislature,  and  possessing  only  such  attributes  as  the  legisla- 
ture has  prescribed."  Pembina,  etc.,  Co.  v.  Penn.  125  U.  S. 
181;  s.  c.,  Thayer's  Cas.  Const.  Law,  468;  Paul  v.  Virginia,  8  Wall. 
(U.  S.)  180. 

2.  What  are  the  provisions  of  the  Fourteenth  Amendment,  sec- 
tion one,  of  the  United  States  Constitution? 

Section  1  of  the  Fourteenth  Amendment  is  as  follows: 
"  All  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United  States 
and  of  the  State  wherein  they  reside.  No  State  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States;  nor  shall  any  State  deprive  any 
person  of  life,  liberty  or  property,  without  due  process  of  law;  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protection  of 
the  laws." 

3.  Pennsylvania  passed  a  statute  requiring  an  annual  license 
fee  from  a  foreign  corporation  which  "  does  not  invest  and  use 
its  capital  in  this  commonwealth."     Is  such  a  statute  uncon- 
stitutional as  "  denying  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws  "  ?     Is  any  corporation  a  "  per- 
son "  within  the  meaning  of  this  clause? 

Every  domestic  corporation  would  be  a  "  person  "  within  the 
meaning  of  the  clause  above  quoted.  "  Under  the  designation  of 
person  there  is  no  doubt  that  a  private  corporation  is  included." 
Pembina,  etc.,  Co.  v.  Penn.,  125  U.  S.  181;  s.  c.,  Thayer's  Cas. 
Const.  Law,  468. 

The  statute,  however,  would  not  be  unconstitutional.  A  foreign 
corporation  is  not  a  corporation  in  Pennsylvania,  and  cannot, 


CONSTITUTIONAL  LAW.  77 

therefore,  be  a  "  person  within  its  jurisdiction."  A  State  may 
prescribe  conditions  upon  the  entrance  of  foreign  corporations  or 
may  even  exclude  them,  as  it  sees  fit,  without  violating  the  Four- 
teenth Amendment. 

"  The  only  limitation  upon  this  power  of  the  State  to  exclude  a 
foreign  corporation  from  doing  business  within  its  limits  *  *  * 
arises  where  the  corporation  is  in  the  employ  of  the  Federal  gov- 
ernment, or  where  its  business  is  strictly  commerce,  interstate  or 
foreign."  Pembina,  etc.,  Co.  v.  Penn.  (supra). 

4.  A  State  passed  a  law  which  provided  that  it  should  be 
unlawful  for  any  person  who  is  not  a  bona  fide  resident  of  the 
State  to  act  as  trustee.     Is  such  a  law  constitutional? 

No.  It  is  against  the  Fourteenth  Amendment  to  the  Constitu- 
tion, which  enacts,  in  part,  that  "  No  State  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immunities  of  citizens 
of  the  United  States."  A  citizen  of  the  United  States  may  acquire 
property  in  any  State,  and  may,  therefore,  take  it  in  trust.  Roby 
v.  Smith,  131  Ind.  342;  s.  c.,  Thayer,  Cas.  Const.  Law,  457. 

II.     "  DUE  PROCESS  OF  LAW/' 

5.  What  are  the  provisions  of  the  Fifth  Amendment  to  the 
United  States  Constitution? 

The  provisions  of  that  amendment  are  as  follows: 
"  No  person  shall  be  held  to  answer  for  a  capital  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
militia,  when  in  actual  service  in  time  of  war  or  public  danger;  nor 
shall  any  person  be  subject  for  the  same  offense  to  be  twice  put  in 
jeopardy  of  life  or  limb;  nor  shall  be  compelled  in  any  criminal 
case  to  be  a  witness  against  himself,  nor  be  deprived  of  life,  liberty 
or  property,  without  due  process  of  law;  nor  shall  private  property 
be  taken  for  public  use,  without  just  compensation." 

It  is  to  be  noted  that  the  provision  in  regard  to  "  due  process  of 
law  "  in  the  Fifth  Amendment,  is  the  same  as  that  in  the  Fourteenth 
Amendment,  quoted  above  (Ques.  2.)  There  is  a  great  distinction  be- 
tween the  provisions,  however,  in  that  the  Fifth  Amendment  is  a  re- 
straint upon  the  Federal  government,  while  the  Fourteenth  Amend- 
ment was  introduced  as  a  restraint  upon  the  several  States. 

"  It  is  not  a  little  remarkable,  that  while  this  provision  has  been  in 
the  Constitution  of  the  United  States,  as  a  restraint  upon  the  Federal 
government,  for  nearly  a  century,  and  while,  during  all  that  time, 
the  manner  in  which  the  powers  of  that  government  have  been 
exercised  has  been  watched  with  jealousy,  and  subjected  to  the 
most  rigid  criticism  in  all  its  branches,  this  special  limitation  upon. 


78  QUESTIONS  AND  ANSWERS. 

itB  powers  has  rarely  been  invoked  in  the  judicial  foruin  or  the  more 
enlarged  theatre  of  public  discussion.  But  while  it  has  been  a  part 
of  the  Constitution,  as  a  restraint  upon  the  power  of  the  States,  only 
a  very  few  years,  the  docket  of  this  court  is  crowded  with  cases  in 
which  we  are  asked  to  hold  that  State  courts  and  State  legislatures 
have  deprived  their  own  citizens  of  life,  liberty  or  property  without 
due  process  of  law.  There  is  here  abundant  evidence  that  there 
exists  some  strange  misconception  of  the  scope  of  this  provision  as 
found  in  the  Fourteenth  Amendment."  Davidson  v.  New  Orleans,  96 
U.  S.  97  (1877);  s.  c.,  Thayer,  Cases  Const.  Law,  610. 

6.  What  is  meant  by  "  due  process  of  law,"  in  the  United 
States  Constitution? 

Due  process  of  law  generally  implies  and  includes,  actor,  reus, 
judex,  regular  allegations,  opportunity  to  answer  and  a  trial  ac- 
cording to  some  settled  course  of  judicial  proceedings.  Yet  this  is 
not  universally  true,  and  a  proceeding  may  be  "  due  process  of 
law  "  in  which  there  is  no  trial  whatever.  Thus  the  .Federal  gov- 
ernment may  proceed  summarily  against  a  revenue  collector  for 
a  balance  due,  and  a  statute  which  provides  for  a  seizure  and  sale 
of  the  collector's  property  to  satisfy  his  indebtedness  without  ju- 
dicial procedure,  is  not  unconstitutional.  What  is  "  due  process 
of  law,"  or  to  use  the  original  phraseology  of  the  Magna  Charta, 
"  the  law  of  the  land,"  is  a  question  which  must  be  regarded  from 
an  historical  standpoint.  Murray  v.  Hoboken  Land  Co.,  18  How. 
(U.  S.),  272;  s.  c.,  Thayer,  Cases  Const.  Law,  600. 

In  Davidson  v.  New  Orleans  (supra,  Ques.  5),  Mr.  Justice  Bradley 
said:  "  *  *  *  in  judging  what  is  due  process  of  law,  re- 
spect must  be  had  to  the  cause  and  object  of  the  taking,  whether 
under  the  taxing  power,  the  power  of  eminent  domain,  or  the  power 
of  assessment  for  local  improvements,  or  none  of  these;  and  if 
found  to  be  suitable  or  admissible  in  the  special  case,  it  will  be 
adjudged  to  be  due  process  of  law;  but  if  found  to  be  arbitrary,  op- 
pressive, and  unjust  it  may  be  declared  to  be  not  due  process  of 
law." 

7.  A.'s  property  was  assessed  by  statute  for  improvements 
made  by  the  State,  and  the  assessment  was  given  the  force  of  a 
judgment.     A.  was  served  with  a  notice  to  this  effect  and  given 
a  reasonable  time  to  object  by  court  proceedings.     Is  A.  deprived 
of  his  property  "  without  due  process  of  law  "  by  such  a  statute  f 

No.  A.  has  not  been  so  deprived  of  his  property  "  when  as  re- 
gards the  issues  affecting  it,  he  has  by  the  laws  of  the  State  a 
fair  trial  in  a  court  of  justice,  according  to  the  modes  of  proceed- , 
ings  applicable  to  such  a  case."  Davidson  v.  New  Orleans,  96  U.; 
S.  97;  s.  c..  Thayer,  Cases  Const.  Law,  610;  Spencer  v.  Merchant,. 
125  U.  S.  345;  s.  c.,  Thayerj  Cases  Const.  Law,  647. 


CONSTITUTIONAL  LAW.  79 

8.  A.   is  imprisoned  for  contempt  of  court.     He  contends 
that  he  has  betn  deprived  of  his  liberty  without  due  process  of 
law,  not  having  been  tried  by  a  jury.     Is  his  contention  valid? 

No.  Before  the  passage  of  the  Fourteenth  Amendment,  courts 
had  power  to  punish  for  contempt;  this  pcwer  was  not  taken 
away  by  that  amendment,  and  a  summary  proceeding  is  due  process 
of  law  within  the  meaning  of  the  Fourteenth  Amendment.  Eilen- 
becker  v.  Plymouth  Co.,  143  U.  S.  31. 

So,  also,  where  a  person  pleads  guilty  to  an  indictment,  and  is 
thereupon  sentenced  without  a  jury  trial,  but  in  the  regular  course 
of  the  administration  of  law,  through  the  courts  of  justice  of  the 
State,  he  is  not  deprived  of  his  liberty  without  due  process  of  law. 
The  Fourteenth  Amendment  was  not  designed  to  interfere  with  any 
regular  court  process  or  with  the  administration  of  the  courts  of  a 
State  in  the  manner  provided  by  the  laws  of  the  State.  In  re 
Converse,  137  U.  S.  624;  s.  c.,  Thayer,  Cases  Const.  Law,  681. 

In  constitutional  law,  perhaps,  more  than  in  any  other  subject,  a 
question  must  be  looked  at  historical'y,  and  in  considering  a  question 
raised  under  the  Fourteenth  Amendment,  it  should  always  be  re- 
membered that  that  amendment  was  passed  after  the  emancipation 
of  the  slaves,  and  for  the  purpose  of  securing  to  them  the  full  rights 
enjoyed  by  other  persons  before  their  emancipation.  The  operation 
of  the  amendment,  however,  is  not  confined  to  negroes,  and  it  protects 
all  persons,  including  resident.aliens  and  corpc/rations.  Yick  Wo  v.  Hop- 
kins, 118  U.  S.  356;  s.  c.,  Thayer,  Cases  Const.  Law,  532,  note;  Petnbina, 
etc.,  Co.  v.  Penn.,  125  U.  S.  181;  s.  c.,  Thayer,  Cases  Const.  Law,  468. 
See  also  Ques.  3,  supra.  But  the  extent  cf  that  protection  is  largely 
determined  by  considering  the  specific  result  for  the  accomplishment 
of  which  the  provisions  were  framed. 

9.  A  city  passed  an  ordinance  which  prohibited  any  person 
from  washing  or  ironing  clothes  within  certain  limits  between 
10  p.  m.  and  6  a.  m.     Is  such  an  ordinance  against  the  four- 
teenth constitutional  amendment  that  no  person  shall  be  deprived 
of  his  life,  liberty  or  property,  etc.  ? 

No.  This  is  merely  a  police  regulation  and  as  such  is  not  in 
violation  of  the  Fourteenth  Amendment.  Such  regulations, 
though  special  in  their  character,  do  not  furnish  just  grounds  of 
complaint  if  they  operate  alike  upon  all  persons  and  property 
under  the  same  circumstances  and  conditions.  Barbier  v.  Con- 
nolly, 113  U.  S.  27;  s.  c.,  Thayer,  Cases  Const.  Law,  623. 

In  that  case  the  court  went  so  far  as  to  say  that  the  Fourteenth 
Amendment  had  practically  no  effect  whatever  upon  the  police  power. 
Mr.  Justice  Field  there  said: 

'•  But  neither  the  amendment  (XIV)  —  broad  and  comprehensive  as  It 


80  QUESTIONS  AND  ANSWERS. 

Is  —  nor  any  other  amendment,  was  designed  to  interfere  with  the 
power  of  the  State,  sometimes  termed  its  police  power." 

Similar  statements  are  made  in  Powell  v.  Penn.,  127  U.  S.  628;  s.  c., 
Thayer,  Cases  Const.  Law,  637;  and  Mugler  v.  Kansas,  123  U.  S.  623; 
s.  c.,  Thayer,  Cases  Const.  Law,  782.  And  perhaps  this  is  the  general 
expression  of  the  Supreme  Court,  but  the  statement  is  broader  than 
the  facts  of  the  cases  in  which  it  appears  require,  and  would  probably 
prove  misleading  and  subject  to  some  modification  if  a  proper  state 
of  facts  were  presented.  It  is  almost  invariably  true  that  a  statute 
passed,  bona  fide,  for  the  health  or  welfare  of  the  State,  is  constitu- 
tional, but  if  a  statute  should  be  enacted  which  was  actually  contrary 
to  the  Constitution  or  any  of  the  amendments,  the  fact  that  it  came 
under  the  police  power  would  not  save  it.  The  police  power,  like 
any  other  power  of  the  State,  must  conform  to  the  requirements  of 
the  Constitution. 

Thus  before  the  Fourteenth  Amendment  it  would  have  been  within 
the  power  of  the  States  to  provide  different  kinds  of  schools  for 
different  classes  of  people.  But  after  that  amendment,  although  sep- 
arate schools  could  be  provided  for  colored  or  other  people,  they  could 
not  make  State  provisions  for  different  A-J/K/S  of  schools,  providing  only 
Inferior  instruction  for  certain  classes. 

An  accurate  view  of  the  operation  of  the  Constitution  and  the  amend- 
ments upon  the  police  power  of  the  States  is  expressed  by  Earl,  J.,  In 
In  the  Matter  of  Jacobs,  98  N.  Y.  98;  s.  c.,  Thayer,  Cases  Const.  Law, 
627.  He  there  says: 

"  These  citations  are  sufficient  to  show  that  the  police  power  is  not 
without  limitations,  and  that  in  its  exercise  the  legislature  must  re- 
spect the  great  fundamental  rights  guaranteed  by  the  Constitution." 

III.  THE  POLICE  POWER. 

10.  A  railroad  company  is  required  by  a  statute  to  do  away 
itiith  grade  crossings  and  to  pay  all  expenses,  including  damages 
to  neighboring  property  owners.  Is  this  statute  against  the 
Fourteenth  Amendment  and  unconstitutional,  because  it  de- 
prives the  plaintiff  of  his  property  without  due  process  of  law? 

No.  Such  a  statute,  though  extreme,  would  come  within  the 
range  of  the  police  power  of  the  State.  New  York,  etc.,  K.  R.  Co. 
v.  Bristol,  151  U.  S.  556;  s.  c.,  Thayer,  Cases  Const,  Law,  687. 

"  The  police  power  may  be  defined  in  general  terms  as  that 
power  which  inheres  in  the  legislature  to  make,  ordain  and  estab- 
lish all  manner  of  reasonable  regulations  and  laws,  whereby  to 
preserve  the  peace  and  order  of  society,  and  the  safety  of  its  mem- 
bers, and  to  prescribe  the  mode  and  manner  in  which  even'  one 
may  so  use  and  enjoy  that  which  is  his  own,  as  not  to  preclude 
a  corresponding  use  and  enjoyment  of  their  own  by  others." 
Cooler,  Principles  of  Const,  Law,  320. 

"  This  is  a  most  comprehensive  branch  of  sovereignty,  ex- 
tending as  it  does  to  every  person,  every  public  and  private  right, 


CONSTITUTIONAL  LAW.  81 

everything  in  the  nature  of  property,  every  relation  in  the  State,  in 
society,  and  in  private  life."  Cooley,  Principles  of  Const. 
Law,  238.  See,  also,  Munn  v.  Illinois,  94  U.  S.  113;  s.  c.,  Thayer, 
Cases  Const.  Law,  743;  Barbier  v.  Connolly,  113  U.  S.  27;  s.  c., 
Thayer,  Cases  Const.  Law,  623. 

11.  Has  the  legislature  the  power  to  fix  rates  for  warehous- 
ing grain  and  carrying  passengers? 

Yes.  The  only  question  seems  to  be  that  the  rate  must  be  a 
reasonable  one,  as  the  legislature  has  no  power  to  compel  the  doing 
of  services  without  reward.  "  When  private  property  is  devoted  to 
a  public  use,  it  is  subject  to  public  regulation."  Certain  other 
kinds  of  business,  also,  hold  such  a  peculiar  relation  to  the  pub- 
lic interest  that  there  is  superinduced  upon  them  the  right  of  pub- 
lic regulation,  as  ferrymen  and  hackmen,  and  interest  on  use  of 
money,  and  regulating  the  cost  of  elevating  grain.  Budd  v.  New 
York,"  143  U.  S.  517;  s.  c.,  Thayer,  Cases  Const.  Law,  804;  Munn  v. 
Illinois,  94  U.  S.  113;  s.  c.,  Thayer,  Cases  Const.  Law,  743. 

In  dealing  with  statutes  passed  for  the  public  interest  under  the 
police  power,  the  authority  of  the  courts  is  on  principle  very  limited. 
The  courts  are  not  entitled  to  approach  such  statutes  as  if  they  were 
themselves  legislators.  The  propriety  of  the  legislation  is  a  question 
with  which  they  have  no  right  to  deal.  As  to  that,  the  legislature  is 
the  sole  judge.  The  only  question  which  a  court  may  consider  Is 
whether  the  legislature  had  the  power  to  pass  the  statute.  If  it  had 
such  power,  the  statute  is  constitutional  no  matter  how  ill-judged  Its 
enactment  may  have  been. 

In  determining  the  constitutionality  of  such  police  regulations  the 
main  and  frequently  the  only  question  is,  whether  the  legislature  can 
reasonably  say  that  there  is  a  public  interest  for  such  an  enactment. 
If  so,  then  the  legislation  is  possible.  It  is  in  passing  on  this  ques- 
tion that  the  courts  frequently  exceed  their  power. 

Thus  a  statute  prohibiting  the  manufacture  of  cigars  in  any  tenement- 
house  used  for  living  purposes  was  held  unconstitutional  in  New 
York,  as  depriving  a  person  of  his  property  without  due  process  of 
law.  and  as  not  within  the  "  police  powers  of  a  State."  In  the 
Matter  of  Jacobs,  98  N.  Y.  98;  B.  c.,  Thayer,  Cases  Const.  Law,  627. 
This  case  is,  at  least,  extreme  in  holding  that  the  exercise  of  the  legis- 
lative power  was  unreasonable.  The  act  is  said  to  be  to  improve  the 
public  health,  and  such  a  view  is  hardly  irrational.  If  the  legislature 
can  reasonably  say  that  the  act  will  improve  the  public  health,  the 
court  has  no  authority  to  say  that  it  is  beyond  the  police  power  and 
unconstitutional. 

So  also  a  statute  to  prevent  deception  in  sales  of  dairy  products  and 
prohibit  the  manufacture  of  oleomargarine  was  also  held  unconstitur 
tional  in  New  York,  as  against  the  Fourteenth  Amendment,  and  not 
within  the  police  power.  People  v.  Marx,  99  N.  Y.  377;  s.  c.,  Thayer, 

6 


'82  QUESTIONS  AND  ANSWERS. 

Cases  Const.  Law,  G32.  In  Pennsylvania,  however,  there  was  a  similar 
statute  prohibiting  the  manufacture  and  sale  of  oleomargarine  to  pre- 
vent fraud  in  the  sale  of  butter,  and  this  statute  was  held  constitu- 
tional by  the  United  States  Supreme  Court.  Powell  v.  Pennsylvania, 
127  U.  S.  678;  s.  c.,  Thayer,  Cases  Const.  Law,  687.  Mr.  Justice  Harlan 
there  said: 

"  The  legislature  of  Pennsylvania  *  *  *  has  determined  that  the 
prohibition  of  the  sale,  or  offering  for  sale,  or  having  in  possession 
to  sell  for  purposes  of  food  of  any  [oleomargarine]  *  *  *  will  pro- 
mote the  public  health  and  prevent  frauds  in  the  sale  of  such  articles. 
If  all  that  can  be  said  of  this  legislation  is  that  it  is  unwise,  or  un- 
necessarily oppressive  to  those  manufacturing  or  selling  wholesome 
oleomargarine,  as  an  article  of  food,  their  appeal  must  be  to  the  legis- 
lature, or  to  the  ballot-box,  not  to  the  judiciary.  The  latter  cannot 
Interfere  without  usurping  powers  committed  to  another  department 
of  government." 

In  a  previous  passage  in  the  same  case,  Mr.  Justice  Harlan  also  said: 
"  It  is  scarcely  necessary  to  say  that  if  this  statute  is  a  legitimate 
exercise  of  the  police  power  of  the  State  for  the  protection  of  the 
health  of  the  people,  and  for  the  prevention  of  fraud,  it  is  not  incon- 
sistent with  that  (XIV)  amendment." 

12.  Give  examples  of  a  legitimate  exercise  of  the  police  power. 

The  following  are  examples  of  a  legitimate  exercise  of  the  police 
power: 

A  statute  requiring  a  railroad  to  erect  and  maintain  cattle-guards 
and  fences  at  all  crossings.  Thorpe  v.  Rutland,  etc.,  R.  R.  Co., 
27  Vt.  140;  s.  c.,  Thayer,  Cases  Const.  Law,  706. 

A  statute  requiring  adjoining  landowners  to  bear  the  expense  of 
sidewalks  and  curbstones,  on  the  ground  of  general  comfort  and 
convenience.  Paxson  v.  Sweet,  1  Gr.  (N.  J.)  196;  City  of  Lowell 
v.  Hadley,  8  Met.  (Mass.)  180.  So  also  a  statute  requiring  ad- 
joining owners  to  pay  for  draining  marsh  land,  where  each  is  al- 
lowed a  hearing  as  to  the  amount  of  his  assessment.  Wurts  v. 
Hoagland,  114  U.  S.  606;  s.  c.,  Thayer  Cases  Const.  Law,  768. 

A  statute  regulating  the  sale  of  liquor  and  the  use  to  be  made  of 
premises  where  liquor  is  sold.  The  fact  that  a  statute  impairs  the 
value  of  property  does  not  make  it  unconstitutional.  That  is  not 
a  taking  of  property  within  the  meaning  of  the  Constitution. 
Bertholf  v.  O'Reilly,  74  N.  Y.  509;  s.  c.,  Thayer,  Cases  Const.  Law, 
725;  Mugler  v.  Kansas,  123  U.  S.  623;  s.  c.,  Thayer,  Cases  Const 
Law,  782. 

A  statute  regulating  the  use  to  be  made  of  the  mails,  prohibit- 
ing its  use  for  lottery  purposes,  or  for  the  sale  of  "  green  goods. " 
In  re  Rapier;  In  re  Dupre,  143  U.  S.  110;  s.  c.,  Thayer,  Cases  Const. 
Law,  732. 

The  regulation  of  marriage  and  divorce  also  comes  under  this 
power.  "  Every  independent  State  must  be  at  liberty  to  regulate 


CONSTITUTIONAL  LAW.  83 

» 

the  domestic  institutions  of  its  people  as  shall  seem  most   for 
the  general  welfare."     Cooley,  Principles  of  Const.  Law,  239. 

A  State  law  requiring  all  persons  engaged  in  the  plumbing  busi- 
ness or  drug  business  to  pass  an  examination,  and  to  register,  is  a 
legitimate  exercise  of  the  police  power.  Singer  v.  Maryland,  72 
Md.  464;  s.  c.,  Thayer,  Cases  Const.  Law,  874;  State  v  Heinemann, 
80  Wis.  253;  s.  c.,  Thayer,  Cases  Const.  Law,  876,  note. 

But  a  State  statute  imposing  a  tax  on  the  captain  or  owner  of  a 
vessel  at  the  rate  of  $1.50  for  each  passenger  landed  in  the  port 
is  void,  as  this  is  a  matter  belonging  exclusively  to  Congress.  Head 
Money  Cases,  112  U.  S  580,  590;  s.  c.  Thayer,  Cases  Const.  Law, 
758. 

Personal  rights  and  private  property  can  never  be  arbitrarily  invaded, 
however,  under  the  mere  guise  of  police  regulations,  and  the  question 
whether  or  not  a  statute  is  arbitrary  as  drawn,  or  in  its  operation,  is 
frequently  the  only  point  upon  which  its  constitutionality  turns.  Equal 
protection  of  the  laws  is  guaranteed  by  the  Fourteenth  Amendment.  It 
does  not  require,  however,  "  that  every  person  in  the  land  shall  possess 
precisely  the  same  rights  and  privileges  as  every  other  person.  The 
amendment  contemplates  classes  of  persons,  and  the  protection  given 
by  the  law  is  to  be  deemed  equal,  if  all  persons  in  the  same  class  are 
treated  alike  under  like  circumstances  and  conditions,  both  as  to 
privileges  conferred  and  liabilities  imposed."  Cooley,  Principles  of 
Const.  Law,  237. 

But  when  it  is  said  that  legislation  may  single  out  certain  classes 
It  Is  to  be  understood  that  they  cannot  be  so  selected  arbitrarily. 
There  must  be  some  good  reason  for  the  discrimination.  Thus,  to  put 
the  familiar  example,  a  statute  would  be  unconstitutional  which  was 
to  be  enforced  only  against  red-haired  men  or  blue-eyed  men.  Such 
a  classification  would  be  merely  arbitrary.  On  this  principle  an 
ordinance  forbidding  any  one  from  carrying  on  the  laundry  business 
without  the  consent  of  certain  officers,  was  held  unconstitutional 
where  the  officers  arbitrarily  withheld  their  consent  from  all  China- 
men, but  granted  it  to  other  persons.  Tick  Wo  v.  Hopkins,  118  U.  S. 
356;  s.  c.,  Thayer,  Cases  Const.  Law,  774.  So  also  an  ordinance  re- 
quiring all  Chinamen  to  live  within  a  certain  district  is  void.  In  re 
Lee  Sing,  43  Fed.  Rep.  359;  s.  c.,  Thayer,  Cases  Const.  Law,  861.  But 
an  ordinance  forbidding  all  laundrymen  from  washing  during  certain 
hours  in  specified  parts  of  a  city  is  valid.  Barbier  v.  Connolly,  113  U. 
S.  27;  s.  c.,  Thayer,  Cases  Const.  Law,  623. 

IV.     THE  RIGHT  OF  EMINENT  DOMAIN. 
13.  Define  the  right  of  eminent  domain. 

"  The  right  of  eminent  domain  is  that  attribute  of  sovereignty 
by  which  the  State  may  take,  appropriate  or  divest  private  prop- 
erty whenever  the  public  exigencies  demand  it;  or,  according  to 


'84  QUESTIONS  AND  ANSWERS. 

the  usual  definition,  it  is  the  right  of  taking  private  property  for 
public  purposes.  And  to  this  right  the  obligation  always  attaches 
of  making  just  compensation  for  the  property  taken."  19 
Monthly  Law  Reporter  (Boston),  241,  247;  Thayer,  Cases  Const. 
Law,  953. 

It  is  to  be  remembered,  however,  that  in  the  absence  of  constitu- 
tional prohibition,  the  right  of  eminent  domain  may  be  exercised  with- 
out compensation.  There  was  no  such  limitation  to  the  right  at 
common  law,  and  where  the  limitation  exists,  it  has  been  added  by  our 
Federal  or  State  Constitutions.  "  The  obligation  to  give  just  compen- 
sation, unquestionable  and  universally  admitted,  is  a  moral  obligation, 
not  enforceable  by  courts,  it  would  seem,  as  against  clear  and  indu- 
bitable action  of  the  legislature,  unless  the  Constitution  add  to  this 
moral  obligation  a  legal  sanction."  Thayer,  Cases  Const.  Law,  952, 
note  1.  There  are  only  three  States,  however,  the  Constitutions  of 
which  do  not  contain  a  clause  expressly  requiring  compensation.  All 
of  the  other  State  Constitutions  and  the  Federal  Constitution  contain 
a  clause  (substantially  the  same  in  all)  that  "  private  property  shall 
not  be  taken  for  public  purposes  without  just  compensation."  Thayer, 
Cases  Const.  Law,  954,  955,  note  1.  See  Randolph,  Em.  Dom.  401-416, 
for  provisions  of  the  State  Constitutions. 

"  But,  although  the  right  is  inherent  in  sovereignty,  it  lies  dormant 
until  legislation  is  had,  defining  the  occasions,  methods,  conditions 
and  agencies  under  and  by  means  of  which  it  may  be  exercised." 
Cooley,  Principles  Const.  Law,  345. 

14.  Has  the  Federal  government  the  right  to  take  land  in  a 
State  for  Federal  purposes? 

Yes.  Such  a  right  in  the  Federal  government  was  questioned 
until  1875  when  it  was  settled  by  Kohl  v.  U.  S.,  91  U.  S.  367. 

15.  A  State  kgislature  condemns  property,  and  the  owner 
claims  that  there  is  no  public  necessity  for  the  taking,  and  that  it 
is  not  taken  for  a  public  use.     What  redress  do  the  courts 
afford? 

The  courts  have  the  right  to  inquire  into  the  use  to  which  con- 
demned property  is  to  be  put,  and  the  final  determination  as  to 
whether  or  not  the  use- is  public  rests  with  them.  But  if  the  use 
is  public  the  question  of  necessity  rests  with  the  legislature. 

"  Of  course,  there  is  the  further  limitation,  necessarily  implied, 
that  the  use  shall  be  a  public  one;  upon  which  question  the  deter- 
mination of  the  legislature  is  not  conclusive  upon  the  courts. 
But,  when  the  use  is  public,  the  necessity  or  expediency  of  ap- 
propriating any  particular  property  is  not  a  subject  of  judicial 
cognizance."  Fairchild  v.  City  of  St.  Paul,  46  Minn.  540;  s.  c., 
Thayer.  Cases  Const.  Law,  965;  People  v.  Smith,  21  K  Y.  595; 
s.  c.,  Thayer,  Cases  Const.  Law,  962;  Dingley  v.  Boston,  100  Mass. 
544.  By  the  Michigan  Constitution,  however,  the  necessity  for 


CONSTITUTIONAL  LAW.  85 

using  the  property  is  a  question  for  a  jury  or  a  commissioner  ap- 
pointed by  the  court,  and  not  for  the  legislature,  as  in  other  States. 
Const.,  art.  18,  §  2;  Paul  v.  Detroit,  32  Mich.  108,  113.  Such  a 
provision  is  certainly  very  strange,  as  by  it  a  legislative  question 
which  may  be  of  the  greatest  importance  is  frequently  left  to 
twelve  men  selected  by  lot. 

16.  A  State  legislature  seeks  to  take  the  real  estate  and  fran- 
chise of  a  corporation  by  right  of  eminent  domain.     The  cor- 
poration contends  that  their  franchise  cannot  be  taken  on  account 
of  the  constitutional  prohibition  against  impairing  the  obligation 
of  contracts.     Is  the  contention  sound? 

Xo.  All  contracts,  whether  with  a  State,  or  between  individuals, 
are  made  subject  to.  the  condition  that  they  may  be  affected  by  an 
exercise  of  the  right  of  eminent  domain.  Any  kind  of  property 
can  be  taken.  "  We  are  aware  of  nothing  peculiar  to  a  franchise 
which  can  class  it  higher,  or  render  it  more  sacred,  than  other 
property.  A  franchise  is  property,  and  nothing  more."  The  West 
River  Bridge  Co.  v.  Dix,  6  How.  507,  532;  s.  c.,  Thayer,  Cases 
Const,  Law,  976. 

17.  A  railroad,  by  legislative  authority,  built  its  track  in  such 
a  way  as  to  remove  an  embankment  which  protected  A.'s  land  in 
time  of  freshet.     The  embankment  was  not  on  A.'s  land,  but  his 
property  was  overflowed  by  freshets.    Would  such  a  construction 
of  the  road  constitute  a  "  taking  of  property"? 

It  has  been  held  in  such  a  case  that  property  was  taken  within 
the  meaning  of  the  constitutional  clause  prohibiting  the  taking 
without  compensation.  In  Eaton  v.  Boston,  etc.,  R.  R.  Co.,  51 
N.  H.  504,  the  court,  by.  Smith,  J.,  said: 

"  If  property  in  land  consists  in  certain  essential  rights,  and  a 
physical  interference  with  the  land  substantially  subverts  one  of 
those  rights,  such  interference  '  takes '  pro  tanto,  the  owner's 
'  property.'  The  right  of  indefinite  user  (or  of  using  indefinitely) 
is  an  essential  quality  or  attribute  of  absolute  property,  without 
which  absolute  property  can  have  no  legal  existence.  '  User  is  the 
real  side  of  property.'  This  right  of  user  necessarily  includes  the 
right  and  power  of  excluding  others  from  using  the  land." 

This  view  has  been  followed  in  several  cases,  and  has  been  declared 
to  be  the  "  best  considered  case  which  can  be  found  in  the  books  upon 
this  subject."  Grand  Rapids  Booming  Co.  v.  Jarvis.  30  Mich.  321.  See 
also  Thayer.  Cases  Const.  Law.  1077.  note,  and  cases  cited. 

The  question  of  what  constitutes  a  taking  of  property  is.  however. 
to  be  looked  at  in  the  light  of  the  historical  conception  of  the  meaning 
of  a  taking  of  property,  and  where  so  viewed,  it  is  a  question  whether 
the  courts  have  not  over  refined  in  such  a  case  as  Eaton  v.  R.  R.  Co. 


86  QUESTIONS  AND  ANSWERS. 

The  idea  of  property  as  a  "  bundle  of  rights  "  was  not  as  exact  as  this, 
at  the  time  of  the  Constitution,  and  the  word  "  property "  must  be 
interpreted  by  much  that  has  been  done.  The  cases  holding  that  there 
must  be  a  more  absolute  appropriation  of  the  property,  to  come  within 
the  meaning  of  the  constitutional  prohibition,  seem  the  more  sound. 
See  Transportation  Co.  v.  Chicago,  99  U.  S.  635;  s.  c.,  Thayer,  Cases 
Const.  Law,  1081. 

V.     TAXATION. 

18.  Upon  what  constitutional  ground  may  the  State  or  the 
Federal  government  levy  taxes? 

"  The  power  to  tax  is  an  incident  of  sovereignty,  and  is  coex- 
tensive with  the  subjects  to  which  the  sovereignty  extends.  It  is 
unlimited  in  its  range,  acknowledging  in  its  very  nature  no  limits, 
so  that  security  against  its  abuse  is  to  be  found  only  in  the  re- 
sponsibility of  the  legislature  which  imposes  the  tax  to  the  con- 
stituency who  are  to  pay  it."  Cooley,  Principles  of  Const.  Law,  55. 

A  tax  cannot,  however,  be  constitutionally  levied  for  any  but  pub- 
lic purposes,  and  statutes  which  are  enacted  for  the  collection  of 
money  to  be  devoted  to  a  private  use  are  unconstitutional,  however 
deserving  the  purpose  may  be.  Thus,  it  was  held  that  a  tax  could 
not  constitutionally  be  imposed  to  collect  money  to  be  loaned  to  the 
people  who  had  suffered  by  the  great  Boston  fire.  Lowell  v.  Boston, 
111  Mass.  454;  s.  c.,  Thayer,  Cases  Const.  Law,  1224.  So,  also,  a  tax  to 
aid  private  corporations  to  carry  on  manufacturing  business;  Loan 
Ass'n  v.  Topeka,  20  Wall.  (U.  S.)  655,  663;  s.  c.,  Thayer,  Oases  Const. 
Law.  1235;  and  a  tax  to  supply  farmers  who  have  lost  their  crops  with 
provisions  and  seed.  State  v.  Osawkee,  14  Kan.  418;  s  .c.,  Thayer,  Cases 
Const.  Law,  1247,  note.  The  principle  upon  which  these  cases  were 
decided  is  sound,  but  it  seems  a  question  whether  or  not  it  is  properly 
applied  in  all  of  them.  It  may  be  that  it  is  for  the  benefit  of  the  pub- 
lic that  a  private  person  should  be  benefited.  Thus,  in  Lowell  v. 
Boston,  the  statute  was  to  make  possible  a  rapid  rebuilding  of  the  city, 
which  would,  seem  to  have  many  advantages  to  the  public,  although 
the  court  treated  the  suggestion  of  a  public  purpose  in  the  statute  as 
not  worth  arguing.  Such  legislation  should  be  looked  at  in  view  of  the 
consideration  whether  or  not  there  is  a  reasonable  public  purpose, 
and  not  merely  in  answer  to  the  question,  whether  or  not  some  private 
person  or  corporation  will  also  be  benefited.  Perry  v.  Keene,  56  N.  H. 
514;  s.  c.,  Thayer,  Cases  Const.  Law,  1247. 

19.  How  far  is  the  Federal  government  subject  to  taxation 
by  the  States? 

N"o  property,  whatever,  of  the  Federal  government  can  be  taxed 
by  the  States.  Wisconsin  Cent.  B,  E.  Co.  v.  Price  Co.,  133  U.  S. 
496;  s.  c.  Thayer,  Cases  Const.  Law,  1397. 


CONSTITUTIONAL  LAW.  87 

Neither  can  the  salary  of  a  Federal  officer  be  taxed.  Dobbins  v. 
Coni'rs  Erie  Co.,  16  Pet.  (U.  S.)  435;  s.  c.,  Thayer,  Cases  Const.  Law, 
13o2.  Nor  United  States  bonds.  Weston  v.  Charleston,  2  Pet.  442:  s.  c., 
Thayer,  Cases  Const.  Law,  1346.  Nor  a  bank  created  by  the  United 
States  as  its  fiscal  agent.  McCulloch  v.  Maryland,  4  Wheat.  316,  368; 
a.  c.,  Thayer,  Cases  Const.  Law,  1340. 

It  is  equally  well  established  that  the  Federal  government  cannot 
tax  the  salary  of  a  State  officer.  The  Collector  v.  Day,  11  Wall.  (U.  S.) 
113;  s.  c.,  Thayer,  Cases  Const.  Law,  1378.  The  process  of  a  State 
<.-ourt  is  also  exempt.  Warren  v.  Paul,  22  Ind.  276;  Georgia  v.  Atkins, 
1  Abb.  (U.  S.)  22. 

VI.     Ex  POST  FACTO  AND  EETEOACTIVE  LAWS. 

20.  7s  the  Federal  or  the  State  government  prohibited  from 
passing  ex  post  facto  laws  by  the  United  States  Constitution? 

Both  are  prohibited.     Const.,  art.  I,  §  9,  cl.  3;  art.  I,  §  10,  cl.  1. 

21.  Distinguish  between  retrospective  and  ex  post  facto  laws, 
and  define  the  latter. 

All  ex  post  facto  laws  are  retrospective,  but  only  retrospective 
laws  of  a  criminal  nature  are  ex  post  facto  within  the  meaning  of 
the.  Constitution. 

Ex  pott  facto  laws  were  defined  by  Chase,  J.,  in  Calder  v.  Bull,  3  Dall. 
386  (s.  c.,  Thayer,  Cases  Const.  Law,  1435),  as  follows: 

"  I  will  state  what  laws  I  consider  ex  post  facto  laws,  within  the 
words  and  the  intent  of  the  prohibition.  1.  Every  law  that  makes 
an  action  done  before  the  passing  of  the  law,  and  which  was  innocent 
when  done,  criminal;  and  punishes  such  action.  2.  Every  law  that 
aggravates  a  crime,  or  makes  it  greater  than  it  was,  when  committed. 
3.  Every  law  that  changes  the  punishment,  and  inflicts  a  greater  pun- 
ishment than  the  law  annexed  to  the  crime,  when  committed.  4.  Every 
law  that  alters  the  legal  rules  of  evidence,  and  receives  less  or  differ- 
ent testimony  than  the  law  required  at  the  time  of  the  commission  of 
the  offense,  in  order  to  convict  the  offender.  All  these  and  similar 
laws  are  manifestly  unjust  and  oppressive.  In  my  opinion,  the  true 
distinction  is  between  c x  post  facto  laws  and  retrospective  laws.  Every 
er  post  facto  law  must  necessarily  be  retrospective,  but  every  retro- 
spective law  is  not  an  ex  post  facto  law;  the  former  only  are  prohibited. 
*  *  *  But  I  do  not  consider  any  law  ex  post  facto,  within  the  prohi- 
bition, that  mollifies  the  rigor  of  the  criminal  law;  but  only  those  that 
create,  or  aggravate,  the  crime,  or  increase  the  punishment,  or  change 
the  rules  of  evidence,  for  the  purpose  of  conviction.  Every  law  that 
is  to  have  an  operation  before  the  making  thereof,  as  to  commence 
at  an  antecedent  time,  or  to  save  time  from  the  Statute  of  Limitations, 
or  to  excuse  acts  which  were  unlawful,  and  before  committed,  and  the 
like,  is  retrospective.  But  such  laws  may  be  proper  or  necessary,  as 


88  QUESTIONS  AXE  ANSWERS. 

the  case  may  be.  There  is  a  great  and  apparent  difference  between 
making  an  unlawful  act  lawful,  and  the  making  an  innocent  action 
criminal,  and  punishing  it  as  a  crime." 

VII.     STATE  LAWS  IMPAIRING  THE  OBLIGATION  OF  CONTRACTS. 

22.  What  is  the  provision  of  the  Federal  Constitution  pro- 
hibiting Congress  from  passing  statutes  impairing  the  obliga- 
tion of  contracts? 

There  is  no  such  provision.  Unlike  the  provision  against  c.r  post 
facto  laws  which  is  made  binding  both  upon  Congress  and  the 
States,  the  provision  against  passing  laws  impairing  the  obligation 
of  contracts,  is  binding  upon  the  States  alone.  Const.,  art.  I,  §  10. 

23.  A  State  charters  an  educational  institution  for  the  pub- 
lic good,  with  certain  powers.     Can  those  powers  be  materially 
changed  by  later  enactment  ? 

In  the  famous  Dartmouth  College  Case,  4  Wheat.  518  (s.  c., 
Thayer,  Cases  Const.  Law,  1565),  it  was  held  that  a.  charter  was 
a  contract,  and  that  such  a  statute  was  unconstitutional  as*  impair- 
ing the  obligation  of  contracts.  This  view  has  always  been 
followed. 

It  is  admitted,  universally,  that  where  a  State  has  made  a  con- 
tract the  obligation  of  it  cannot  be  impaired  any  more  than  the 
obligation  of  any  other  contract.  Cooley,  Principles  Const.  Law, 
313.  Perhaps  the  criticism  is  just,  however,  that  in  some  instances 
the  "court  has  been  quick  to  discover  a  contract  that  it  mi<rht  be 
protected."  Miller,  J.  (dissenting),  in  Home  of  the  Friendless  v. 
Rouse,  8  Wall.  (U.  S.)  430,  442;  Washington  University  v.  Rouse, 
id.  439;  s.  c.,  Thayer,  Cases  Const.  Law,  1676,  note. 

24.  A  State  passed  a  statute  applying  to  past  mortgages,  en- 
acting that  the  mortgagor  should  have  an  equity  of  redemption 
for  twelve  months  after  the   sale  of    the  property  under  fore- 
closure.    Is  the  obligation  of  the  contract  thereby  impaired,  or 
is  the  change  simply  in  the  procedure  and  valid? 

The  statute  would  be  unconstitutional  in  anv  case,  whether  or 
not  it  was  construed  as  a  change  of  procedure,  as  the  obligation 
would  be  substantially  impaired.  A  mere  change  in  remedy  does 
not  necessarily  impair  the  obligation  of  a  contract,  but  it  is  a 
question  of  substance  whether  or  not  a  man  is  injured,  and  if  he  is 
lie  would  not  be  bound  by  the  statute.  Bronson  v.  Kinzie,  1  How. 
U.  S.)  311;  s.  c.,  Thayer,  Ca«es.  Const.  Law,  1645. 

The  obligation  of  a  contract  has  been  very  ably  defined  as  follows: 

'  The  obligation  of  a  contract '  is.  therefore,  the  collective  legal  rights 
and  duties  which  the  existing  law,  applicable  to  the  contract,  raises  or 


CONSTITUTIONAL  LAW.  89 

creates  out  of  or  from  the  stipulations  of  the  parties;  rights  which  it 
devolves  upon  one  party,  and  corresponding  duties  which  it  lays  upon 
the  other." 


25.  Can  a  State  enter  into  an  irrepealable  contract,  restrict- 
ing its  power  of  taxation  upon  certain  property,  or  exempting 
it  from  taxation  altogether? 

Yes.  It  has  been  uniformly  held  that  such  a  contract  is  binding. 
State  Bank  of  Ohio  v.  Knoop,  16  How.  (U.  S.)  369;  Home  of  the 
Friendless  v.  Rouse,  8  Wall.  (U.  S.)  430,  438.  See  also  Thayer, 
Cases  Const.  Law,  1673,  1676,  note.  It  has  been  vigorously  argued 
in  such  cases  that  the  legislature  had  no  authority  to  grant  away 
the  power  of  taxation,  but  this  argument  has  been  overruled, 
though  with  the  reservation  that  a  State  could  not  bargain  away 
its  whole  power  of  taxation.  Stone  v.  Mississippi,  101  U.  S.  814; 
s.  c.,  Thayer,  Cases  Const.  Law,  1771. 

But  however  much  the  power  of  taxation  may  be  contracted  away, 
the  States  are  free  to  exercise  the  police  power  in  spite  of  the  constitu- 
tional restriction.  In  New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115 
U.  S.  650  (s.  c.,  Thayer,  Cases  Const.  Law,  1773),  the  court  said: 

"  The  constitutional  prohibition  upon  State  laws  impairing  the  obli- 
gation of  contsacts,  does  not  restrict  the  power  of  the  State  to  protect 
the  public  health,  the  public  morals,  or  the  public  safety,  as  the  one  or 
the  other  may  be  involved  in  the  execution  of  such  contracts.  Rights 
and  privileges  arising  from  contracts  with  the  State  are  subject  to 
regulations  for  the  protection  of  the  public  health,  the  public  morals, 
and  the  public  safety,  in  the  same  sense,  and  to  the  same  extent,  as 
are  all  contracts  and  all  property,  whether  owned  by  natural  persons 
or  corporations."  *  *  * 

Of  course  a  State  may  always  annul  its  contracts  under  the  right  of 
eminent  domain  by  making  compensation.  That  right  can  never  be 
lost.  And  where  the  general  laws  or  the  Constitution  of  a  State  have  a 
general  provision,  as  that  all  charters  shall  be  subject  to  repeal,  the 
constitutional  prohibition  is  without  force.  Crease  v.  Babcock,  23 
Pick.  (Mass.)  334;  s.  c.,  Thayer,  Cases  Const.  Law,  1642. 

VIII.     THE  REGULATION  OF  COMMERCE. 

26.  Under  what  circumstances  have  the  States  authority  to 
regulate  interstate  or  foreign  commerce? 

A  State  has  no  power,  under  any  circumstances,  to  pass  a  statute 
which  is  simply  for  the  regulation  of  commerce,  unless  it  be  entirely 
confined  to  its  own  boundaries.  By  the  Constitution  Congress  has 
the  power  "  to  regulate  commerce  with  foreign  nations,  and  among 
the  several  States,  and  with  the  Indian  tribes."  Const.,  art.  I.  §  8, 
cl.  3.  This  power  is  absolutely  exclusive  in  that  no  State  statute 


i)0  QUESTIONS  AND  ANSWERS. 

can  stand  which  is  opposed  to  an  act  of  congress,  but  "  the  mere 
existence  of  this  power  in  Congress  does  not  necessarily  exclude 
the  States  from  all  authority  whatever  which  might  affect  the 
commerce  falling  within  the  control  of  Congress,  provided  no  actual 
legislation  of  congress  is  interfered  with."  Cooley,  Principles 
Const.  Law,  67;  Cooley  v.  Wardens,  12  How.  299.  States  do  many 
things  which,  in  a  sense,  do  regulate  commerce  and  yet  are  valid 
for  other  reasons.  See  the  Mayor,  etc.,  of  New  York  v.  Miln,  11 
Pet.  (U.  S.)  102;  s.  c.,  Thayer,'  Cases  Const.  Law,  1840;  Leisy  v. 
Hardin,  135  U.  S.  100;  Plumley  v,  Massachusetts,  155  U,  S.  461. 


CONTRACTS.  91 


CONTRACTS. 


I.  PARTIES  CAPABLE  OF  CONTRACTING. 

1.  Who  are  capable  of  making  contracts  by  the  common  lawf 

Every  one,  generally  speaking,  can  make  a  binding  contract,  ex- 
cept (1)  infants,  (2)  married  women,  (3)  lunatics,  (4)  drunken 
people,  and  (5)  corporations. 

(1)  The  contracts  of  infants  are  voidable.    Infants  may,  indeed,  be 
charged  for  necessaries  which  they  have  purchased,  but  even  in 
those  cases  they  are  not  charged  upon  the  contracts  made,  but 
upon  the  principles  of  quasi-contracts.     Thus  only  a  fair  price  for 
the  necessaries  can  be  recovered,  regardless  of  the  contract  price. 
Trainer  v.  Trumbull,  141  Mass.  527,  530.     Of  course,  in  cases 
where  an  infant  still  has  the  property  contracted  for,  he  cannot 
deny  liability  on  the  ground  that  the  contract  is  voidable  and  still 
keep  the  property.     Stull  v.  Harris,  51  Ark.  294. 

(2)  The   disability    of   married    women    to    con'ract   has    been 
almost  entirely  removed  by  statute,  but  at  common  law  their  con- 
tracts were  absolutely  void.     1  Parsons  on  Contracts  (8th  ed.),  369. 

(3)  Contracts  made  by  lunatics  should,  on  principle,  be  voidable 
as  those  made  by  infants;  but  it  is  held  in  most  jurisdictions  that 
if  the  party  contracting  with  them  acted  in  ignorance,  and  the 
lunatic  received  good  consideration,  the  contract  is  binding.    Mu- 
tual Life  Ins.  Co.  v.  Hunt,  79  N.  Y.  541. 

In  a  few  jurisdictions,  however,  the  contracts  of  lunatics  are 
absolutely  void  or  voidable,  under  all  circumstances.  Brigham  v. 
Fayerweather,  144  Mass.  48.  See  also  Dexter  v.  Hall,  15  Wall. 
9,  where  the  authorities  are  examined.  The  States  in  which  this 
view  has  been  upheld  are  Maine,  Michigan,  Missouri,  Oregon,  and 
Pennsylvania.  For  citations,  see  1  Parsons  on  Contracts  (8th  ed.), 
423,  note  1. 

(4)  Contracts  of  drunken  men  are  void  only  when  they  are  so 
intoxicated  as  not  to  know  what  they  are  doing.     Van  Wyck  v. 
Brasher,  81  X.  Y.  260. 

(5)  Contracts  of  corporations  are  binding  only  so  far  as  they 
are  authorized  to  make  them.     See  Corporations,  Ques.  22-25. 

II.  CLASSIFICATION  OF  CONTRACTS. 

2.  What  is  meant  by  unilateral  and  bilateral  contracts?  by 
•executed  and  executory  contracts? 

The  terminology  of  unilateral  and  bilateral,  as  applied  to  con- 
tracts, has  been  introduced  in  comparatively  very  recent  years,  and 


92  QUESTIONS  AND  ANSWERS. 

among  the  members  of  the  bench  and  the  older  members  of  the  bar, 
has  met  with  but  little  favor,  but  it  is  certainly  scientific  and 
.accurate,  and  has  the  great  merit  of  being  free  from  ambiguity, 
and  of  indicating  the  real  nature  of  the  transaction. 

Goods  can  be  transferred  without  any  contract  whatever,  as 
where  they  are  purchased  over  the  counter  in  exchange  for  cash 
paid  at  once.  But  in  most  transactions  there  is  a  promise  made  by 
one  or  both  parties.  Thus,  if  A.  goes  to  a  store  and  buys  on 
credit,  he  promises  to  pay  for  the  goods  a  stipulated  price.  The 
storekeeper,  however,  makes  no  promise,  but  delivers  the  goods. 
In  such  a  case  there  is  a  unilateral  or  one-sided  contract,  as  only  one 
of  the  contracting  parties  makes  a  promise.  The  other  does  some- 
tning.  If,  however,  A.  goes  to  a  manufacturer  and  asks  him  to 
make  him  certain  goods,  there  a  contract  is  entered  into  on  which 
both  sides  make  promises.  A.  promises  to  buy  certain  goods  when 
made  at  a  fixed  price,  and  B.  promises  to  manufacture  those  goods 
and  to  sell  them  to  A.  at  that  price.  Such  a  contract,  therefore,  i& 
bilateral  or  two-sided. 

The  more  familiar  designation  of  these  two  classes  of  contracts 
is  to  call  the  first  an  executed  and  the  second  an  executory  con- 
tract, but  those  terms  have  not  been  used  with  nice  discrimination, 
and  are  frequently  ambiguous.  See  2  Langdell,  Cases  on  Con- 
tracts, p.  1092. 

Contracts  are  also  classified  as  (1)  contracts  by  specialty  or  contracts 
under  seal,  and  (2)  simple  contracts  or  those  not  under  seal. 

There  is  a  still  further  classification  into  (1)  express  contracts  which 
are  stated  by  the  parties  verbally  or  in  writing,  and  (2)  implied  con- 
tracts, the  terms  of  which  are  to  be  gathered  from  the  actions  of  the 
parties.  1  Parsons  on  Contracts  (8th  ed.),  6,  and  note  1. 

III.  MUTUAL  CONSENT. 

3.  What  is  meant  by  a  "  meeting  of  minds  "  in  the  making  of 
a  contract? 

The  ordinary  expression  is  that  there  can  be  no  contract,  unless 
there  is  a  "  meeting  of  minds."  That  statement  means,  however, 
only  that  there  must  be  an  offer  and  an  acceptance  of  that  offer 
while  it  still  continues.  The  courts  did  not,  at  first,  act  upon  the 
idea  that  an  offer  could  continue  open  for  some  time  after  it  was 
made,  and  if  accepted  while  in  force,  result  in  a  binding  contract. 
That  principle,  however,  has  long  been  recognized,  and  an  offer 
which  has  once  been  made,  continues  open  until  it  is  withdrawn,  or 
a  reasonable  time  for  its  acceptance  has  expired.  1  Parsons  on 
Contracts  (8th  ed.),  497. 

As  originally  used,  the  phrase  "  meeting  of  minds,"  did  mean 
that  both  parties  must  have  the  same  idea  at  the  same  time,  but 
at  present  it  is  the  acts  of  the  parties  which  are  held  to  oind  them, 


CONTRACTS.  93 

and  not  their  intentions.  Thus,  a  man  might  make  an  offer 
and  immediately  change  his  mind,  but  if  the  offer  were  not  with- 
drawn he  would  be  bound  by  an  acceptance  of  it.  These  principles 
were  first  established  in  Adams  v.  Lindsell,  1  B.  &  Aid.  681,  and  are 
now  recognized  everywhere. 

As  Judge  Holmes  expresses  it,  "  The  making  of  a  contract  does 
not  depend  on  the  state  of  the  parties'  minds,  it  depends  on  their 
overt  acts."  Holmes,  The  Common  Law,  307. 

4.  A,   offers  to  sell  certain  land  for  $1,000.     B.  makes  a, 
counter  offer  to  purchase  for  $750,  which  A,  declines.     B.  then 
accepts  A.'s  offer  to  sell  for  $1,000,  and  that  also  is  declined. 
Has  B.  any  right  against  A.  ? 

No.  Had  A.'s  offer  been  accepted  originally,  there  would  have 
been  a  good  contract  which  B.  could  have  enforced,  but  a  counter 
offer  is  a  refusal  to  accept  the  original  offer  and,  therefore,  termi- 
nates it.  Hyde  v.  Wrench,  3  Beav.  334;  Nat.  Bank  v.  Hall,  101 
U.  S.  43,  50. 

If  B.  had  said,  however,  "  Will  you  take  $750?  "  that  would  not  have 
amounted  to  a  refusal  to  pay  $1,000,  and  the  offer  would  still  have 
remained  open.  Stevenson  v.  McLean,  L.  R.  5  Q.  B.  Div.  346.  A  con- 
ditional acceptance  also  is  a  rejection  of  au  offer  and  nullifies  it  as  com- 
pletely as  a  counter  offer.  To  make  a  binding  contract,  an  offer  must 
be  accepted  in  terms  and  unconditionally.  Ortman  v.  Weaver,  11  Fed. 
Rep.  358. 

It  is  not  to  be  understood,  however,  that  any  act  showing  that  a 
rnaii  means  to  accept  an  offer  will  make  a  binding  contract.  The  act 
must  be  one  which  puts  out  of  his  control  and  into  the  control  of  the 
party  making  the  offer,  a  notice  that  the  offer  is  accepted.  Beginning 
to  perform  in  accordance  with  the  offer  is  not  an  acceptance.  White  v. 
Corliss,  46  N.  Y.  467. 

5.  A.  sends  an  offer  by  mail  to  sell  B.  certain  goods  at  a  fixed 
price,  asking  reply  by  return  mail.     B.  accepts  the  offer  by  re- 
turn mail  as  directed,  but  his  acceptance  is  never  received.     Is 
there  a  contract?     Suppose  B.  had  replied  by  wir~e? 

As  previously  stated  the  law  looks  to  the  acts  of  the  parties  to 
show  whether  they  have  entered  into  a  contract,  and  the  courts 
have  almost  universally  taken  the  mailing  of  an  acceptance  as  the 
act  which  completes  a  contract.  Having  held  that  the  contract  was 
binding  upon  both  parties  as  soon  as  the  acceptance  is  mailed,  it 
was  necessary  to  hold  also  that  the  contract  was  equally  binding 
whether  or  not  the  acceptance  was  received.  A  leading  case  on 
this  point  is  Vassar  v.  Camp,  11  N.  Y.  441.  See  also  Dunlop  v. 
Higgins,  1  H.  of  L.  Cas.  381. 

If  B.  had  replied  by  wire,  however,  there  would  have  been  no 
contract,  unless  the  telegram  was  received.  A  man,  in  making  an 


94  QUESTIONS  AND  ANSWERS. 

offer,  has  a  right  to  authorize  any  mode  of  communication  he  sees 
fit  for  accepting  that  offer,  and  he  is  bound  as  soon  as  the  com- 
munication is  put  out  of  the  power  of  the  party  accepting,  if  the 
latter  sends  the  reply  as  authorized.  But  if  the  acceptance  is 
sent  in  some  other  way  than  the  one  authorized,  even  though  it 
be  considered  a  better  way,  the  offerer  is  not  bound,  unless  the 
acceptance  is  actually  received.  If,  however,  in  the  question  putr 
the  telegram  were  received  while  the  offer  was  open  then  there 
would  be  a  binding  acceptance.  Eliason  v.  Henshaw,  4  Wheat. 
(U.  S.)  225. 

So  also  if  a  man  specifies  a  particular  place  to  which  to  send  an  ac- 
ceptance, the  principles  are  the  same  as  in  the  case  of  a  specified 
mode  of  communication.  If  the  acceptance  is  sent  to  another  place 
than  the  one  specified,  there  is  no  contract  upon  mailing  the  accept- 
ance and  none  if  it  is  received  unless  it  reaches  the  offerer  as  soon 
as  it  would  have  done  if  sent  to  the  place  designated.  Eliason  v.  Hen- 
shaw, (supra). 

In  Massachusetts,  however,  the  tendency  has  been  towards  a  con- 
trary rule,  holding  that  a  contract  is  not  binding  until  the  acceptance 
by  mail  is  received.  McCulloch  v.  Eagle  Ins.  Co.,  1  Pick.  278.  The 
point  is  not,  perhaps,  absolutely  settled.  Lewis  v.  Browning,  130  Mass. 
173, 175,  and  Judge  Holmes  prefers  the  rule  of  the  other  States.  Holmes,. 
The  Common  Law,  306. 

6.  A.  makes  B.  an  offer  and  in  it  states  that  an  acceptance  is 
to  be  mailed  but  shall  not  be  binding  until  received.     Is  such  a- 
condition  binding? 

Yes.  In  making  an  offer  a  man  may  impose  any  conditions  he 
sees  fit,  and  such  a  condition  is  a  very  wise  one.  Lewis  v.  Browning, 
130  Mass.  173;  Haas  v.  Myers,  111  111.  421,  427. 

7.  A.  mails  a  letter  accepting  an  offer,  and  then  finding  that 
the  contract  is  not  advantageous,  sends  a  telegram  declining  the 
offer.     The  telegram  is  received  before  the  letter.     Can  A.  be 
held  to  the  contract? 

Yes.  A  man  cannot  overtake  a  letter  with  a  telegram,  any  more 
than  he  can  recall  words.  Hallock  v.  Ins.  Co.,  26  X.  J.  Law,  268, 
281. 

8.  A.  writes  B.,  offering  to  sell  certain  goods  at  a  specified 
price.     B.,  in  ignorance  of  A.'s  offer,  writes  him,  at  the  same 
time  offering  to  buy  the  same  goods  at  the  same  price.     Is  there 
a  binding  contract  between  them? 

No.  Two  offers  are  not  the  same  as  an  offer  and  an  acceptance. 
In  Pearson  v.  The  Commercial,  etc.,  Co.,  29  L.  T.  Itep.  (N.  S.)  271, 


CONTRACTS.  95 

Blackburn,  J.,  said,  p.  279:  "  The  promise  or  offer  being  made  OEL 
each  side  in  ignorance  of  the  promise  or  the  offer  made  on  the, 
other  side,  neither  of  them  can  be  construed  as  an  acceptance  of 
the  other."  See  also  opinion  of  Brett,  J.,  p.  278.  There  is  little, 
if  any,  other  authority  upon  the  point,  and  the  opinion  above 
quoted  was  simply  a  dictum,  but'  is  sound  on  principle. 

9.  A.  agrees  to  sell  certain  goods  "  to  arrive  ex  ship  Peer- 
less."    B.  agrees  to  purchase  the  same,  thinking  that  the  goods 
are  to  arrive  in  October  by  the  ship  "Peerless/'  which  is  due  then. 
There  are,  however,  two  ships  "Peerless,"  and  A.  is  selling 
goods  to  arrive  by  a  later  ship.     Can  A.  enforce  the  contract? 

No.  There  was  no  meeting  of  minds  in  the  more  literal 
meaning  of  that  phrase.  That  is,  the  parties  to  the  contract  were 
not  thinking  or  talking  of  the  same  things.  The  "  Ship  Peerless," 
meant  the  October  ship  to  B.,  but  an  entirely  different  ship  to  A. 
Baffles  v.  Wichelhaus,  2  H.  &  C.  906.  See  also  Stoddard  v.  Ham, 
129  Mass.  383. 

10.  A.  offers  to  sell  B.  "  not  exceeding  6,000  tons  "  of  coal. 
B.  accepts  the  offer  in  terms.     How  much  coal  could  B.  require 
A.  to  deliver  to  him? 

B.  could  not  require  the  delivery  of  any  coal,  as  such  an  accept- 
ance would  not  make  a  binding  contract.  When  an  offer  is  made 
of  an  unspecified  amount,  the  other  party  must  specify  the  amount 
as  to  which  he  is  contracting  in  his  acceptance.  There  can  be 
no  binding  contract  where  one  of  the  terms  is  not  fixed.  Nat. 
Bank  v.  Hall,  101  U.  S.  43,  50;  Chicago,  etc.,  Ry.  Co.  v.  Dane, 
43  N.  Y.  240. 

11.  A.  mailed  an  offer  October  1st,  which  was  received  October 
Wth,  and  accepted  at  once.     On  the  2d,  however,  A.  wrote  re- 
voking the  offer  and  his  letter  arrived  October  ~L2th.     Is  there  a 
good  contract? 

Yes.  A  revocation  of  an  offer,  to  be  effective,  must  be  communi- 
cated. "  A  state  of  mind  not  notified,  cannot  be  regarded  in  deal- 
ings between  man  and  man  "  Byrne  v.  Van  Tienhoven,  5  C.  P. 
Div.  344;  Kempner  v.  Cohn,  58* Am.  Rep.  (Ark.)  104. 

It  may  not,  however,  be  necessary  that  the  revocation  should  al- 
ways be  communicated  directly.  It  has  been  held  that  where  A. 
offers  to  sell  a  house  to  B.,  the  offer  to  be  "  left  over "  for  a  speci- 
fied length  of  time,  and  then  A.  sells  to  a  third  person  before 
the  time  has  expired.  B..  after  he  has  learned  of  that  sale  though 
from  an  outside  source,  cannot  make  a  good  contract  by  accepting 


96  QUESTIONS  AND  ANSWERS. 

the  offer  made  to  him.  Dickinson  v.  Dodds,  2  Ch.  Div.  463.  Pollock 
cites  this  case  for  the  point  that  the  knowledge  of  the  offerer's  change 
of  intention,  however  received,  will  be  a  sufficient  revocation.  Pollock 
on  Contracts,  *p.  28.  This,  however,  and  Coleruan  v.  Applegarth,  68 
Md.  21  (accord)  are,  it  is  believed,  the  only  recorded  cases  on  the  point. 

12.  A.,  by  public  advertisement,  offers  a  reward  of  $1,000 
for  information  leading  to  the  conviction  of  the  murderer  of 
X.     B.  knows  of  the  offer,,  but  makes  no  effort  to  accept  it. 
Later,  being  in  a  supposed  dying  condition,  lie  gives  the  neces- 
sary information,  and  upon  recovery,  sues  for  the  reward.     Is 
he  entitled  to  it?     Suppose  he  had  not  known  of  the  reward 
offered  ? 

B.  would  not  be  entitled  to  the  reward,  whether  he  knew  of  it 
or  not.  This  is  a  unilateral  contract,  completed  when  the  condi- 
tions are  fulfilled,  but  an  offer  and  an  acceptance  are  as  necessary 
in  a  unilateral  as  in  a  bilateral  contract.  If  A.  did  not  know 
of  the  reward  offered,  the  giving  of  the  information  could  not  be 
an  acceptance  of  the  offer,  and  so  also,  even  if  the  offer  were  known, 
B.  would  have  to  accept  it  by  giving  the  information  with  the  in- 
tention of  complying  with  its  terms.  The  real  question  is,  what 
does  B.'s  act  mean?  It  may  mean  acceptance  or  not.  Hewitt  v. 
Anderson,  56  Cal.  476. 

IV.  CONSIDERATION. 
a.    In  General. 

13.  What  elements  are  necessary  to  constitute  good  considera- 
tion for  a  promise? 

The  idea  of  consideration  in  the  eye  of  the  law  is  that  of  an  ex- 
change. A  promise  must  be  bought.  The  one  requisite  is  that 
something  must  be  given  for  it.  That  which  is  given  must,  to  sus- 
tain a  suit  upon  the  contract,  be  a  detriment  to  the  plaintiff,  mov- 
ing to  the  defendant,  at  the  defendant's  request,  and  the  plaintiff 
must  undertake  the  detriment  voluntarily,  and  without  any  pre- 
vious binding  duty  or  obligation  to  undertake  it. 

Consideration  is  usually  a  benefit  to  the  defendant  as  well  as  a 
detriment  to  the  plaintiff,  but  not  necessarily,  and  it  will  be  a  good 
consideration  where  it  is  purely  a  detriment  to  the  plaintiff;  and 
on  the  other  hand,  it  will  not  be  good  consideration  where  there 
is  only  a  benefit  to  the  defendant.  Thus,  where  A.  agrees,  for  a 
sum  of  money,  to  discontinue  a  suit  upon  a  claim  which  he  knows 
is  bad,  he  could  not  enforce  the  contract  for  want  of  consideration. 
It  is  a  benefit  to  have  an  action  against  one  discontinued,  even 
though  it  is  groundless,  but  it  is  no  detriment  to  a  man  who 
abandons  such  a  suit.  He  has  given  up  nothing.  Wade  v.  Simeon, 
2  C.  B.  Rep.  548. 


CONTRACTS.  97 

On  the  other  hand,  it  is  a  detriment  in  the  eye  of  the  law  that  a 
man  does  what  he  is  not  bound  to  do.  Thus,  in  Homer  v.  Sidway, 
57  Hun  (N.  Y.),  229,  a  boy  was  offered  $5,000  if  he  would  not 
smoke,  drink  or  gamble,  and  the  trial  court  ruled  that  such  a  prom- 
ise was  not  good  consideration,  as  it  was  no  detriment  to  the  boy  to 
forego  such  things,  but  this  ruling  was  reversed  in  the  Court  of 
Appeals,  where  it  was  held,  that  the  giving  up  of  any  right  is  a 
detriment.  Homer  v.  Sidway,  124  N.  Y.  538. 

In  the  case  of  a  sealed  instrument,  however,  no  consideration 
was  held  to  be  necessary  to  make  a  contract  binding,  owing  to  the 
deliberateness  of  the  act,  and  that  rule  still  prevails  to-day  in  the 
absence  of  statute.  Krell  v.  Codman,  154  Mass.  454;  McMillan  v. 
Ames,  33  Minn.  257.  In  New  York  a  seal  is  only  presumptive 
evidence  of  consideration.  N".  Y.  Code  Civ.  Pro.,  §  840. 

b.    Sufficiency  of  Consideration. 

14.  A.'s  property  being  on  fire,  he  promises  the  chief  of  the 
fire  department  $1,000  ,if  he  will  do  his  utmost  to  put  it  out. 
He  also  offers  him  another  $1,000  if  he  will  rescue  a  child.  He 
is  sued  for  the  $2,000,  and  defends  on  the  ground  that  his  prom- 
ise was  without  consideration,  as  the  plaintiff  was  already 
bound  by  his  connection  with  the  fire  department  to  do  all  in 
his  power  to  save  property  and  life.  Judgment  for  whom? 

The  plaintiff  should  have  judgment  for  the  $1,000  promised 
for  saving  the  child,  provided  that  in  so  doing  the  man  ran  a  per- 
sonal risk  greater  than  he  was  bound  to  incur  by  reason  of  his 
connection  with  the  fire  department.  Eeif  v.  Paige,  55  Wis.  496; 
Davis  v.  Munson,  43  Vt.  676.  He  could  not  recover  the  other 
$1,000  under  any  circumstances,  however.  As  stated,  supra  (Ques. 
13),  a  plaintiff's  act  is  not  good  consideration,  when  he  was  al- 
ready bound  to  perform  that  act,  and  it  is  a  fireman's  duty  to  do 
his  utmost  to  put  out  a  fire.  He,  therefore,  suffered  no  detriment 
which  could  be  consideration  for  the  other's  promise,  being  bound 
to  suffer  it  in  any  case  Reif  v.  Paige,  (supra). 

The  principle  that  when  a  man  Is  already  bound  to  do  a  thing,  the 
doing  of  it  will  not  be  good  consideration  to  make  a  binding  contract, 
is  illustrated  in  many  cases.  The  previous  legal  obligation  may  be: 

1.  To  the  promisee.    Thus  a  promise  to  pay  a  debt  already  due  is 
not  good  consideration.    Warren  v.  Hooge.  121  Mass.  106.    Nor  a  prom- 
ise to  complete  a  railroad  by  a  contractor  to  build.    Ayres  v.  Chicago, 
etc.,  R.  R.  Co.,  52  Iowa,  478. 

2.  Z    a  third  person.    Thus  where  a  man  is  already  bound  by  a  con- 
tract with  A.  to  do  a  thing,  the  doing  of  that  thing  will  not  be  good 
consideration  for  another  contract  with  B.    Putnam  v.  Woodbury,  68 
Me.  5f'. 


98  QUESTIONS  AND  ANSWERS. 

3.  To  the  public.    Thus  forbearance  to  commit  a  tort  is  not  good 
consideration.    McCaleb   v.    Price,    12  Ala.    753.    The   performance   of 
official  duty  is  equally  ineffectual.    Kick  v.  Merry,  23  Mo.  72. 

4.  So  also  the  performance  of  a  legal  duty  is  no  consideration,  as 
the  attendance  of  a  witness  who  has  already  been  subpoenaed.    Dodge 
v.  Stiles,  26  Conn.  463. 

Oi  course,  where  the  several  contracts  are  unilateral  the  above 
questions  do  not  arise  Thus,  ten  men  may  each  offer  A.  $10 
if  he  will  do  a  certain  thing,  and  he  would  be  entitled  to  recover 
from  each  of  them,  as  he  Avas  under  no  previous  obligation  to  do 
the  thing  by  reason  of  any  of  the  offers.  It  is  only  when  by 
a  public  duty  or  a  previous  bilateral  contract  a  man  is  already 
bound  to  do  a  thing  that  a  second  promise  fails  to  be  good  con- 
sideration. Of  course,,  if  two  bilateral  contracts  would  be  made 
at  the  same  time  they  could  be  enforced,  as  there  would  be  no 
previous  obligation  in  such  a  case. 

15.  A.,  who  has  allowed  a  note  to  go  to  protest,  makes  the 
following  agreement  with  B.:     "In  consequence  of  said   note 
not  being  paid,  I  agree  to  pay  two  per  cent,  interest  per  month 
until  it  is  paid."     Could  B.  recover  more  than  the  legal  rate 
of  interest  on  the  agreement? 

He  could  not  recover  upon  the  agreement  at  all.  The  promise 
is  made  upon  the  past  default  of  A.,  which  is  no  consideration  at 
all.  Consideration  must  be  given  for  the  promise.  Shealy  v. 
Toole,  56  Ga.  210;  Pollock  on  Contracts  (4th  Am.  ed.),  232. 

16.  A.  pays  B.  $10  in  return  for  his  promise  to  immediately 
return  him  $20.     Could  A.  recover  the  $20? 

No.  This  illustrates  the  only  class  of  cases  in  which  the  courts 
require  sufficiency  of  consideration.  In  most  cases  the  coiirts  will 
not  inquire  into  the  adequacy  of  consideration  given,  and  a  man 
may  promise  anything  for  what  he  sees  fit  and  will  then  be  held 
to  it,  but  where  the  agreement  on  both  sides  is  for  the  payment 
of  money,  at  the  same  time,  the  sums  to  be  paid  must  be  equal. 
Where,  however,  one  party  is  to  pay  the  money  at  another  place 
or  another  time,  both  would  be  held  to  the  performance  of  any 
contract  they  might  make.  In  other  words,  the  courts  will  only 
inquire  into  the  sufficiency  of  consideration,  even  in  contracts  for 
the  payment  of  money,  when  the  terms  as  to  time  and  amount  of 
payment  are  the  same.  1  Parsons  on  Contracts  (8th  ed.),  p  -450, 
and  note  1;  2  id.  p.  804,  note  t;  Shepard  v.  Rhodes,  7  R.  I.  ^-70. 

17.  A.  holds  a  note  of  B.'s  which  he  is  unable  to  collect,  nring 
to  the  Statute  of  Limitations.     He  surrenders  it  upon   B.'s 
(jareement  to  aire  a  new  note.     A.  sites  upon  the  new  note,  and 


CONTRACTS.  99 

B.  defends  upon  the  ground  that  the  surrender  of  a  note  which 
could  not  be  collected  ivas  not  good  consideration.  Is  the  defense 
good? 

No.  The  surrender  of  the  note  would  be  good  consideration, 
whether  or  not  it  could  be  collected.  Wilton  v.  Eaton,  12?  Mass. 
174. 

As  shown  before,  the  thing  given  need  not  be  intrinsically  valu- 
able to  make  it  good  consideration.  See  also  Haigh  v.  Brooks,  10 
A.  &  E.  309. 

18.  A.,  B.  and  C.  sign  a  subscription  list  agreeing  to  con- 
tribute to  purchase  a  church  bell.     The  church  contracts  for  the 
purchase  of  the  bell  and  sues  A.,  B.  and  C.  to  recover  the  amount 
subscribed.     Who  should  have  judgment? 

Judgment,  on  principle,  should  be  for  the  subscribers.  Such  a 
subscription  is  merely  a  gratuity,  and  cannot,  on  principle,  be  en- 
forced. This  view  is  established  in  New  York.  Presbyterian 
Church  v.  Cooper,  112  N.  Y.  517;  Twenty-third  Street  Baptist 
Church  v.  Cornell,  117  id.  601.  And  is  also  the  law  in  England. 
In  re  Hudson,  54  L.  J.  Ch.  (N.  S.)  811. 

In  almost  every  jurisdiction,  however,  such  subscriptions  are 
enforced,  but  upon  widely  varying  grounds.  Some  seven  different 
views  have  been  expressed  upon  which  such  a  subscription  can 
be  collected,  and  the  courts  have  taken  the  utmost  pains  to  find 
some  consideration  for  the  subscriber's  promise  to  pay.  They  have 
succeeded  in  making  him  pay,  but  not  in  advancing  any  good 
reason,  in  law,  why  he  should.  The  subscriber's  promise  is  purely 
gratuitous  when  made,  and  cannot  be  changed  by  the  lapse  of 
time,  or  by  the  action  of  the  church. 

For  the  different  views  and  a  collection  of  authorities,  see  1 
Parsons  on  Contracts  (8th  ed.),  468,  note  1. 

19.  A.  agrees  to  forbear  bringing  suit  upon  a  claim  which  if 
actually  not  valid,  though  he  honestly  believes  it  to  be.     Would 
such  an  agreement  be  good  consideration  for  a  contract?     Sup- 
pose suit  had  been  begun  and  the  agreement  was  to  discontinue 
it? 

There  is  a  somewhat  different  ruling  in  many  States  as  to  the 
sufficiency  of  the  consideration  in  agreements  to  forbear  suit  and 
to  discontinue  suits  actually  begun.  Where  suit  has  been  begun, 
a  court  will  presume  it  to  be  well  begun,  and  when  a  defendant 
claims  that  an  agreement  to  discontinue  it  is  not  good  consideration 
he  must  show  that  the  action  was  groundless.  Bidwell  v.  Catton, 
Hobart.  21fi:  s.  c..  1  Lan<rdell.  Cases  on  Contracts.  245. 

Where  suit  has  not  been  begun,  and  also  after  suit,  it  is  held  in 
England,  that  if  a  man  honestly  believes  that  he  has  a  good  claim, 


100  QUESTIONS  AND  ANSWERS. 

a  promise  to  forbear  suit  or  to  discontinue  will  be  good  considera- 
tion, even  though  the  claim  is  really  bad.  The  courts  in  so  doing 
look,  and  it  would  seem  rightly,  at  the  question  of  the  considera- 
tion from  the  standpoint  of  the  parties,  just  as  is  done  in  a  policy 
of  insurance  upon  a  ship,  "  lost  or  not  lost."  Callisher  v.  Bischoff- 
Bheim,  L.  K.  5  Q.  B.  449;  Miles  v.  New  Zealand,  etc.,  Co.,  32 
Ch.  Div.  266;  1  Parsons  on  Contracts  (8th  ed.),  456,  note  1. 

In  the  United  States,  however,  the  prevailing  rule  is  that  where 
suit  has  not  been  begun,  the  claim  must  be  shown  to  be  at  least 
doubtful,  in  order  to  entitle  a  plaintiff  to  recover  upon  a  contract 
to  forbear  suit.  The  objection  to  this  rule  is  that  it  is  necessary  to 
go  into  court  in  order  to  determine  whether  or  not  a  claim  is  doubt- 
ful. 1  Parsons  on  Contracts  (8th  ed.),  456,  note  1,  cases  collected. 
Some  four  or  five  States,  however,  have  followed  the  rule  laid  down 
in  Callisher  v.  Bischoffsheim,  or  have  laid  down  a  similar  one.  See 
Union  Bk.  v.  Geary,  5  Pet.  (U.  S.)  99;  Morris  v.  Munroe,  30  Ga.  630; 
Grandin  v.  Grandin,  49  N.  J.  Law,  508;  Zoebisch  v.  Van  Minden, 
120  N.  Y.  406;  Bellows  v.  Sowles,  55  Vt.  391;  Hewett  v.  Currier, 
63  Wis.  386.  See  also  Prout  v.  Pittsfield  Fire  District,  154  Mass. 
450;  Dailey  v.  King,  79  Mich.  568;  Clark  v.  Turnbull,  4  X.  J.  Law, 
265;  Wildman  v.  R.  R.  Co.,  25  Atl.  Rep.  (Vt.)  896. 

In  Mississippi,  the  extreme  rule  is  maintained.  A  promise  to  for- 
bear suit  is  only  good  consideration  where  the  claim  is  actually 
good.  Gunning  v.  Royal,  59  Miss.  45. 

Of  course,  in  all  jurisdictions,  a  promise  to  forbear  bringing  suit 
or  to  discontinue  a  case  is  not  good  consideration  when  a  man 
knows  that  his  claim  is  bad.  Headley  v.  Hackley,  50  Mich.  43; 
Ormsbee  v.  Howe,  54  Vt.  182. 

In  the  States  where  the  rule  laid  down  in  Callisher  v.  Bischoff- 
sheim is  followed,  it  would,  of  course,  make  no  difference  whether 
suit  had  been  begun  or  not.  See  Grandin  v.  Grandin,  49  N.  J. 
Law,  508,  514.  In  most  jurisdictions,  however,  where  a  claim  must 
be  doubtful  the  distinction  would  prevail. 

c.    Moral   Consideration. 

20.  Give  briefly  the  historical  origin  of  the  idea  of  moral 
consideration. 

The  doctrine  of  moral  consideration  was  developed  and  given 
importance  largely  by  Lord  Mansfield,  who  laid  down  the  principle 
that  "  where  a  man  is  under  a  moral  obligation,  which  no  court 
of  law  or  equity  can  enforce,  and  promises,  the  honesty  and  recti- 
tude of  the  thing  is  a  consideration."  Hawkes  v.  Saunders,  Cowp. 
289.  The  courts,  however,  soon  showed  an  unwillingness  to  ap- 
ply the  doctrine  to  new  cases,  and  it  was  finally  expressly  overruled, 
as  laid  down  in  the  broad  language  of  Lord  Mansfield,  above 
quoted.  In  Eastwood  v.  Kenvon,  11  A.  &  E.  438,  the  limitation 
of  the  principle  was  thus  stated:  "an  express  promise  can 


CONTRACTS.  101 

only  revive  a  precedent  good  consideration,  which  might  have 
been  enforced  at  law,  through  the  medium  of  an  implied  prom- 
ise, had  it  not  been  suspended  by  some  positive  rule  of  law;  but 
can  give  no  original  right  of  action,  if  the  obligation  on  which 
it  is  founded  never  could  have  been  enforced  at  law,  though  not 
barred  by  any  legal  maxim  or  statute  provision."  In  accordance 
with  this  statement,  moral  consideration  is  still  to  be  traced  in  sev- 
eral fixed  rules  of  law  which  prevail  to-day.  These  are  to  be  ex- 
plained only  upon  historical  grounds,  and  are  really  "  pure  ex- 
ceptions to  an  otherwise  invariable  rule  "  that  consideration  must 
be  given  in  exchange  for  the  promise.  1  Parsons  on  Contracts 
(8th  ed.),  445,  note  1. 

21.  In  what  branches  of  the  law  of  contracts  does  the  element 
of  moral  consideration  still  exist? 

There  are  several  branches  of  the  law  of  contracts  which  present 
rules  contrary  to  the  general  principles  of  consideration.  These 
rules  can  be  explained  only  upon  the  historical  ground  of  moral  con- 
sideration: 

1.  In  cases  of  infancy  where  the  contracts  made  are  voidable,  if 
the  infant  wishes  to  plead  his  infancy,  his  promise  to  pay  or  other- 
wise perform  the  contract  after  he  becomes  of  age  will  bind  him 
to  the  performance  promised.     The  action  must  still  be  based 
upon  the  original  promise  and  the  new  promise  will  only  be  proved 
in  case  infancy  is  pleaded,  when  it  is  held  that  the  new  promise 
repels  the  defense,  and  revives  the  original  promise  by  its  ratifica- 
tion.   Edmonds'  Case,  3  Leonard,  164;  s.  c.,  1  Langdell,  Cases  on 
Contracts,  314.    The  new  promise  is  not  a  mere  waiver  of  the  right 
to  plead  infancy.     Freeman  v.    Nichols,   138    Mass.    313.     Thus 
where  a  new  promise  is  made  after  suit  has  been  brought  it  is  not 
sufficient  to  sustain  the  pending  action.     Hale  v.  Gerrish,  8  N".  H. 
374.     Of  course,  there  is  no  consideration  for  the  new  promise, 
but  there  used  to  be,  under  the  ideas  of  moral  consideration  and 
the  explanation  for  the  rule  to-day  is  simply  historical. 

2.  Similarly,  in  cases  of  bankruptcy,  a  discharge  acts  as  a  bar 
to  any  action,  but  the  bankrupt  may  waive  the  bar;  and  in  case  of 
a  new  promise  to  pay,  an  action  may  be  brought  upon  the  original 
debt,  and  if  the  discharge  is  then  pleaded,  the  new  promise  makes 
a  good  replication.     Shippey  v.   Henderson,   14  Johns.    (X.    Y.) 
178;  Way  v.  Sperry,  6  Cush.'  (Mass.)  238. 

3.  So,  also,  a  new  promise  to  pay  a  debt  already  barred  by  the 
Statute  of  Limitations  may  be  enforced.     In  this  case,  however, 
there  is  a  different  method  of  reasoning,  which  is  rendered  neces- 
sary by  the  statute  itself.     Where  a  defendant  pleads  the  Statute 
of  Limitations  it  is  impossible  to  plead  the  new  promise  in  the 
replication,  as  the  statute  specifically  states  that  an  action  cannot 
be  brought  after  a  certain  lapse  of  time,  and  to  sustain  the  replica- 
tion   would    be    an    open    violation    of    the    statute.      Where, 


102  QUESTIONS  AND  ANSWERS.     . 

therefore,  the  Statute  of  Limitations  is  pleaded,  the  plaintiff  must 
tender  issue  on  the  plea,  and  bring  in  the  new  promise  in  evidence. 
The  court  then  resorts  to  the  fiction  that  the  new  promise  shows  a 
debt  actually  existing,  and  that  the  law  implies  a  promise  to  pay  it. 
It  is  obvious,  however,  that  in  order  to  apply  the  fiction,  the  orig- 
inal cause  of  the  action  must  be  one  in  assumpsit  where  the  promise 
to  pay  can  be  implied,  and  where  an  express  promise  is  not  neces- 
sary. Isley  v.  Jewett,  3  Mete.  (Mass.)  439.  The  ne^M  promise 
may  be  conditional  or  partial,  and  the  plaintiff  can  only  recover 
the  amount  specifically  promised,  which  shows  that  the  new  prom- 
ise is  the  gist  of  the  action.  Foster  v.  Smith,  52  Conn.  449. 

4.  The  only  other  well-recognized  exception  to  the  rule  that  a 
promise  must  have  good  present  consideration  is  in  the  case  of 
a  promise  by  a  drawer  or  indorser  of  a  bill  or  note  to  pay  the 
holder,  although  the  latter  has  lost  his  right  of  suit  by  failing  to 
use  due  diligence.  Such  a  promise  will  be  enforced.  Turnbull  v. 
Maddox,  68  Md.  579;  Salisbury  v.  Renick,  44  Mo.  554. 

It  is  generally  held  that  the  new  promise  must  be  made  to  the  party 
to  whom  the  money  is  owed.  In  Banning  on  Statute  of  Limitations, 
chap.  5,  p.  64,  it  is  stated,  however,  that  the  new  promise  is  bind- 
ing if  made  to  a  party  in  interest,  Croinan  v.  Stull,  119  Penn.  St.  91;  or 
if  it  was  meant  to  be  communicated.  De  Freest  v.  Warner,  98  N.  Y. 
217.  Of  course  part  payment  is  as  good  as  a  new  promise.  Isley  v. 
Jewett,  3  Mete.  (Mass.)  439. 

Speaking  generally,  there  is  to-day  a  marked  disinclination  in  al- 
most every  jurisdiction  to  extend  the  rule  holding  moral  obligations 
to  be  good  consideration.  In  Mills  v.  Wyman,  3  Pick  (Mass.)  207; 
Parker,  Ch.  J.,  aptly  says:  "  If  moral  obligation,  in  its  fullest  sense, 
is  a  good  substratum  for  an  express  promise,  it  is  not  easy  to  per- 
ceive why  it  is  not  equally  good  to'  support  an  implied  promise.  What 
a  man  ought  to  do,  generally  he  ought  to  be  made  to  do,  whether  he 
promise  or  refuse.  But  the  law  of  society  has  left  most  of  such  obli- 
gations to  the  interior  forum,  as  the  tribunal  of  conscience  has  been 
aptly  called." 

Pennsylvania,  however,  goes  far  beyond  the  well-recognized  cases 
of  moral  consideration  considered  above,  and  even  holds  that  in  case 
of  gratuitous  services  a  later  promise  to  pay  for  them  may  be  en- 
forced. Landis  v.  Royer,  59  Penn.  St.  95.  See  also  Stebbins  v.  Craw- 
ford, 92  id.  289,  and  Holden  v.  Banes,  140  id.  63.  In  holding  that  a  moral 
consideration  was  sufficient  when  there  never  had  been  any  binding 
legal  obligation  which  would  have  supported  an  original  cause  of 
action.  Pennsylvania  in  Landis  v.  Royer,  (supra),  goes  to  the  ex- 
treme limit  in  enforcing  moral  consideration.  In  the  four  instances 
of  moral  consideration  considered  above  there  has  been  a  good  original 
obligation  and  those  are  very  different  cases  from  one  where  the  new 
promise  is  held  to  create  an  original  cause  of  action.  Such  a  view  is 
.  horoughly  objectionable. 


CONTRACTS.  103 

d.     Executed  Consideration. 

22.  A.  sold  B.  a  horse,  and  after  the  sale  warranted  him 
sound.     Is  he  bound  by  the  warranty? 

No.  The  old  idea  of  past  or  executed  consideration,  as  well  as 
that  of  moral  consideration,  has  long  since  been  disposed  of.  It 
arose,  like  the  other  idea,  at  the  time  that  the  action  of  assumpsit 
was  being  developed,  and  when  the  courts  still  held  that  an  ex- 
press promise  was  necessary  to  sustain  an  action  in  debt.  A  later 
promise  was  then  seized  upon  in  order  to  do  justice,  and  from  that 
the  principle  of  executed  consideration  was  largely  extended.  It 
has  been  established  for  years,  however,  that  "  a  consideration 
past  and  executed  will  support  no  other  promise  than  such  as 
would  be  implied  by  law.*'  In  the  case  put,  therefore,  a  later 
warranty  would  have  no  consideration  as  it  is  no  promise  which 
the  law  would  imply.  Eoscorla  v.  Thomas,  3  Q.  B.  Eep.  234. 

It  is  equally  true  that  where  the  past  consideration  is  such 
that  the  law  will  imply  a  promise,  still  that  consideration  will 
not  support  even  a  slight  variation  in  the  new  promise.  Thus 
where  on  an  account  stated  A.  is  found  to  be  indebted  and  prom- 
ises to  pay  on  the  tenth  day  of  the  following  month,  that  promise  could 
not  be  enforced,  as  made,  without  consideration.  A.'s  liability  was  to 
pay  the  amount  due  on  request,  and  a  new  consideration  would  be 
necessary  to  render  him  liable  to  pay  on  a  future  fixed  day.  Hopkins 
v.  Logan,  5  M.  &  W.  241.  These  two  cases  —  Roscorla  v.  Thomas  and 
Hopkins  v.  Logan,  (supra)  —  thoroughly  disposed  of  the  old  ideas  as  to 
past  consideration. 

e.     Consideration  Void  in  Part. 

23.  A.  agrees  not  to  distrain  for  rent  due  and  to  give  up  a 
note  of  B/s  in  return  for  the  latter's  promise  to  pay  $100.     A. 
sues  for  the  money,  and  B.  pleads  want  of  consideration,  as 
A.  never  had  any  right  to  distrain.     Is  the  answer  good? 

No.  There  are  two  classes  of  cases  where  consideration  is  void 
in  part.  The  iirst  is  where  the  party  to  the  contract  does  not  get 
all  that  he  has  asked  for,  owing  to  the  fact  that  part  of  the  con- 
sideration cannot  legally  be  performed.  In  that  case  there  is  no 
contract,  owing  to  the  failure  of  the  consideration.  But,  in  the 
second  case,  as  here,  where  the  party  does  get  all  that  he  asks  for, 
although  part  of  it  is  not  good  consideration,  there  is  a  perfectlv 
good  contract.  If  the  other  part  of  the  consideration  is  good  it 
will  sustain  the  agreement.  King  v.  Sears,  2  C.,  M.  &  R.  48. 

V.     CONTRACTS  FOR  BENEFIT  OF  THIRD  PERSONS. 

24.  A.  and  B.,  in  consideration  of  the  marriage  of  their  son 
and  daughter,  agree  that  each  will  pay  to  X.,  their  son  and  son- 


104  QUESTIONS  AND  ANSWERS. 

in-law,   respectively,   $5,000.     B.    refuses   to  pay.     Would  X* 
have  a  good  cause  of  action? 

The  law  is  well  settled  in  England  that  X.  could  not  recover  in 
such  a  case,  and  that  result  is  sound  on  principle.  X.  here  is  not 
a  party  to  the  contract  and  has  given  no  consideration  for  B.'s 
promise.  "  It  would  be  a  monstrous  proposition  to  say  that  a 
person  was  party  to  the  contract  for  the  purpose  of  suing  upon  it 
for  his  own  advantage,  and  not  a  party  to  it  for  the  purpose  of 
being  sued."  Tweddle  v.  Atkinson,  1  Best  &  Smith,  393. 

This  view,  however,  is  not  generally  law  in  this  country, 
owing  to  the  difficulties  of  doing  justice.  If,  in  the  case  put,. 
A.  should  bring  suit  upon  B.'s  refusal  to  pay,  he  could  only 
recover  nominal  damages,  as  he  would  not  be  personally  in- 
jured .substantially  by  B/s  failure  to  pay  X.  If  X.  is  not  al- 
lowed to  sue,  therefore,  no  one  can  enforce  the  contract.  In  many 
jurisdictions,  for  this  reason,  the  courts  have  jumped  the  difficulty 
and  allowed  the  beneficiary  to  sue.  Such  a  course  enforces  the  in- 
tentions of-  the  parties  and  works  substantial  justice.  It  is  not 
necessary,  however,  in  cases  where  the  party  to  the  contract  could 
recover  substantial  damages  for  its  breach.  But  the  prevailing 
rule  in  this  country  is,  that  when  a  contract  has  been  made  for 
the  benefit  of  a  third  person  he  may  sue  upon  it,  and  his  right  of 
action  is  sustained  in  a  large  variety  of  cases  where  the  party  to 
the  contract  could  recover  substantial  damages.  3  Am.  &  Eng. 
Ency.  (1st  ed.)  863,  note  5. 

Thus,  where  A.  who  is  indebted  to  X.  lends  money  to  B.  upon 
the  latter's  promise  to  pay  it  over  to  X.  at  a  later  day,  X.  has  been 
allowed  to  sue,  even  though  he  did  not  know  of  the  contract  when 
made.  Lawrence  v.  Fox,  20  X.  Y.  268.  See  also  Gifford  v.  Cor- 
rigan,  117  id.  257,  and  Bassett  v.  Hughes,  43  Wis.  319.  Cf.  the 
latest  New  York  case,  Buchanan  v.  Tilden,  5  App.  Div.  354;  re- 
versed 158  N.  Y.  109. 

But  where  the  third  party  is  only  indirectly  benefited  he  would, 
of  course,  have  no  right  of  action.  Burton  v.  Larkin,  13  Pac. 
Rep.  (Kan.)  398. 

Where,  however,  an  action  must  be  based  upon  a  bill  or  note  or  a 
sealed  instrument,  it  is  held  generally  that  a  third  party  bene- 
ficially interested  cannot  sue.  Such  instruments  are  considered  so 
formal  that  only  a  party  to  them  can  maintain  an  action.  Moore 
v.  House,  64  111.  162;  Fairchild  v.  Xorth  Eastern,  etc.,  Assn.,  51 
Vt.  613. 

VI.     ASSIGNMENT  OF  CONTRACTS. 

25.  In  what  cases  may  contracts  be  assigned? 

There  are  three  kinds  of  assignment: 

(1)  The  assignment  of  a  benefit  —  any  unilateral  obligation.  (2) 
The  assignment  of  a  duty,  as  subletting  a  contract  to  build.  (3) 
The  assignment  of  both  benefit  and  duty,  as  to  build  a  house  and 


CONTRACTS.  105 

get  the  original  price  offered  by  the  party  for  whom  the  house  is 
built. 

An  assignment  of  the  first  kind  is  always  goou.  Any  one  may 
be  appointed  to  collect  a  debt.  The  second  kind  of  an  assignment 
is  allowable,  if  the  duty  to  be  performed  is  such  that  the  one  origin- 
ally bound  could  have  performed  it  though  an  agent.  Where  the 
personal  services  of  a  party  are  contracted  for,,  as  in  the  case  of  a 
physician,  no  assignment  would  be  possible.  The  question  is  the  ' 
same  in  the  third  kind  of  an  assignment  —  whether  the  assignee 
can  satisfactorily  perform  the  duty.  British  Wagon  Co.  v.  Lea,  5 
Q.  B.  Div.  149;  Arkansas  Co.  v.  Belden  Co.,  127  U.  S.  379. 

VII.  CONDITIONAL  CONTRACTS. 
a.   Generally. 

26.  Classify  the  different  kinds  of  conditions  to  be  met  with 
in  contracts,  and  distinguish  between  them. 

As  regards  the  times  when  conditions  are  to  be  performed  they 
are  classified  as:  (1)  Conditions  precedent;  (2)  Concurrent  condi- 
tions; and  (3)  Conditions  subsequent.  As  the  terms  indicate,  in  (1) 
one  of  the  parties  makes  his  performance  conditional  upon  some 
prior  thing  which  is  to  happen  or  to  be  done  before  he  can  be 
called  upon  to  perform  his  part  of  the  contract.  In  (2)  the  per- 
formances are  to  take  place  at  the  same  time.  In  (3)  a  complete 
contract  is  made  between  the  parties,  but  a  condition  is  inserted 
by  which  the  contract  may  be  rescinded  if  the  condition  is  not  ful- 
filled. 3  Am.  &  Eng.  Ency.  (1st  ed.)  909-911.  Thus,  in  a  mort- 
gage, the  only  way  in  which  it  materially  differs  from  a  deed  is 
in  the  condition  subsequent  that  the  estate  conveyed  shall  cease 
upon  the  payment  of  the  mortgage  debt. 

Conditions  are  also  express  and  implied,  according  as  the  parties 
insert  them  in  express  words,  or  they  are  implied  from  the  terms 
of  the  contract.  And  implied  conditions  are  again  subdivided  into 
(1)  Conditions  implied  in  law,  and  (2)  Conditions  implied  in  fact. 

A  condition  is  implied  in  law  that  a  party  will  perform  his  part 
of  a  contract  and,  therefore,  recovery  by  either  party  is  conditional 
upon  his  showing  that  he  has  performed,  or  offered  to  do  so.  A 
very  common  example-  of  such  a  condition  occurs  in  the  sale  of 
goods  where  delivery  and  payment  are  concurrent  conditions.  In 
such  cases  neither  party  can  recover  without  showing  his  perform- 
ance or  its  equivalent.  See  Benjamin  on  Sales  (6th  Am.  ed.),  897. 

A  condition  is  implied  in  fact  when  one  of  the  parties  to  the 
contract  cannot  carry  out  his  agreement,  as  intended,  until  the  hap- 
pening of  some  event.  Thus,  where  a  defendant  promises  to  de- 
liver fifteen  tods  of  wool  to  be  selected  by  the  plaintiff  from  a  larger 
number  of  tods,  the  selection  by  the  plaintiff  is  a  condition  prece- 
dent, implied  in  fact,  the  performance  of  which  is  necessary.  Ray- 
nay  v.  Alexander,  Yelv.  76;  s.  c.,  1  Langdell,  Cases  on  Contracts, 
443. 


10G  QUESTIONS  AND  ANSWERS. 

"  VvThen,  in  the  order  of  events,  the  act  to  be  done  by  one  party 
must  necessarily  be  done  before  the  other  can  be  done,  it  is  neces- 
sarily a  condition  precedent."  Cadwell  v.  Blake,  6  Gray  (Mass.), 
402,  409. 

27.  A.  agrees  to  pay  $1,000  on  September  Wth,  and  B.,  in 
consideration  agrees  to  convey  land  on  September  20th.  B. 
sues  for  payment  of  the  money  on  September  15tf/i,  and  A.  pleads 
that  the  land  has  not  been  conveyed.  Is  the  plea  a  good  defense  ? 

No.  In  such  a  case  the  covenants  are  independent.  In  the 
early  days  the  courts  took  a  very  artificial  view  of  mutual  cove- 
nants, holding  that  they  were  separate  contracts  and  independent 
of  each  other,  unless  expressly  made  dependent.  Thorp  v.  Thorp, 
12  Mod.  455,  per  Holt,  Ch.  J.  And  in  the  case  of  mutual  promises, 
as  soon  as  they  were  held  to  be  good  consideration  for  each  other, 
the  courts  held  that  one  promise  was  payment  for  the  other  and, 
therefore,  that  the  performances  were  independent.  Battisworth 
v.  Campion,  Yelv.  134. 

It  was  only  after  many  years  that  the  principle  was  worked  out 
that  performance  was  what  the  parties  were  contracting  for,  not 
promises,  and,  to-day,  the  courts  will  construe  all  promises  as  con- 
current, as  far  as  possible,  and  will  hold  the  conditions  of  perform- 
ance, also,  concurrent,  and  not  allow  one  party  to  recover  upon  a 
contract  before  he  has  himself  performed  or  offered  to  do  so.  Mars- 
den  v.  Moore,  4  H.  &  1ST.  500.  Parties  may,  however,  by  the  terms  of 
their  contract,  make  their  promises  independent,  so  that  one  party 
may  recover  without  having  himself  performed.  In  the  present 
case  A.,  having  agreed  to  pay  ten  days  before  the  land  was  to  be 
conveyed,  would  be  bound  to  do  so.  The  law  was  thus  expressed  by 
Sergeant  Williams,  in  his  famous  note  to  Portage  v.  Cole,  1  Wms. 
Saund,  319. 

"  If  a  day  be  appointed  for  payment  of  money  or  part  of  it,  or 
for  doing  any  other  act,  and  the  day  is  to  happen  or  may  happen 
before  the  thing  which  is  the  consideration  of  the  money  or  other 
act  is  to  be  performed,  an  action  may  be  brought  for  the  money,  or 
for  not  doing  such  other  act  before  performance;  for  it  appears 
that  the  party  relied  upon  his  remedy,  and  did  not  intend  to  make 
the  performance  a  condition  precedent." 

Portage  v.  Cole  has  led  to  some  very  unsound  decisions,  and  the 
quotation  above  has  been  frequently  misapplied,  but  is  still  good 
law,  when  properly  applied  to  the  facts.  See.  Ques.  39  (infra). 

For  a  clear  discussion  of  dependent  and  independent  conditions,  see 
Jones  v.  Marsh.  22  Vt.  144.  In  general  it  may  be  stated  that  where  the 
performance  of  a  contract  takes  time  on  both  sides,  and  there  is 
nothing  on  either  side  to  show  that  the  performance  by  one  party  is 
a  condition  precedent  to  performance  by  the  other,  then  each  must  go 


CONTKACTS.  107 

ahead  with  his  part  of  the  agreement,  and  the  promises  are  independent 
and  each  has  a  right  of  action  for  the  failure  of  the  other  to  perform. 
In  other  words,  when  performances  are  not  in  exchange  for  each  other 
the  covenants  are  usually  independent,  and  perhaps  always  so.  Where, 
however,  promises  can  be  held  concurrent  without  violating  the  ex- 
pressed intentions  of  the  parties,  the  courts  will  so  construe  them. 
Thus  if  A.  agrees  to  perform  certain  work  and  B.  agrees  to  pay 
for  it  on  a  fixed  day,  the  covenants  will  be  held  to  be  concurrent  if 
the  work  can  be  finished  before  the  fixed  day.  If  no  day  was  fixed 
for  payment  then  it  would  be  held  to  come  after  the  work  was  done. 
In  such  cases  A.  could  not  recover  without  showing  a  completion  of 
the  work,  nor  could  B.  recover  without  showing  a  tender.  It  is  in 
the  interest  of  all  that  independent  suits  should  not  be  encouraged  by 
parties  who  have  not  themselves  performed.  Where  a  contract  can  be 
construed  so  that  payment  may  be  either  a  condition  concurrent  or 
precedent,  it  is  more  just  to  construe  it  as  a  condition  precedent  by 
which  all  parties  will  be  protected.  2  Parsons  on  Contracts  (8th  ed.), 
645,  note  r. 

28.  A.  leases  property  to  B.,  agreeing  to  keep  in  repair  and 
B.  agreeing  to  pay  rent.     The  premises  later  need  repair,  and 
B.  refuses  to  pay  rent  until  the  repairing  is  done.     Can  he  he 
ejected? 

Yes.  The  covenants  in  such  a  case  are  independent.  By  giv- 
ing possession  a  lessor  performs  the  principal  part  of  his  covenant, 
and  the  lessee  does  not  pay  rent  for  what  is  promised,  but  almost 
entirely  for  possession  which  he  has  received.  "  The  lessee's  cove- 
nant to  pay  rent  was  not  affected  by  the  injury  to  the  premises 
*  *  *  and  is  independent  of  the  lessor's  covenant  to  make  re- 
pairs. And  it  is  not  now  denied  that  the  lessee  was  rightly  re- 
quired to  pay  rent,  and  lawfully  ejected  for  failing  to  pay."  Leavitt 
v.  Fletcher,  92  Mass.  119,  per  Gray,  J. 

So  also  where  A.  agreed  to  guarantee  a  debt  for  B.  and  the  latter 
agreed  to  guarantee  a  debt  for  A.,  the  promises  would  be  independent, 
and  either  could  recover  though  he  had  not  himself  paid.  Christie  v. 
Borelly,  29  L.  J.  Rep.  Com.  Pleas,  153. 

Both  in  the  case  put  in  the  question  and  the  last  case  cited,  the  per- 
formances are  not  in  exchange  for  each  other,  and,  therefore,  per- 
formance by  one  is  not  a  condition  precedent  to  his  right  to  recover. 

29.  A.  agrees  to  convey  certain  land  to  B.,  and  in  considera- 
tion B.  gives  A.  his  promissory  note  for  $1,000.     A.  brings 
fiction  on  the  note  without  offering  to  convey,  and  claims  that  the 
note  is  an  independent  instrument  and  can  he  enforced  whether 
he  has  performed  or  not.     Judgment  for  whom? 

Jiidgment  should  be  for  B.  In  England  A.'s  claim  that  a  bill  or 
note  is  independent  has  been  sustained,  and  a  party  holding  such 


108  QUESTIONS  AND  ANSWERS. 

an  instrument  has  been  allowed  to  recover,  though  himself  in  de- 
fault. Spiller  v.  Westlake,  2  B.  &  Ad.  155;  Moggridge  v.  Jones,  14 
East,  486. 

In  the  United  States,  however,  the  promises  of  such  a  contract 
are  held  to  be  dependent,  and  no  recovery  could  be  had  in  the 
above  case  if  A.  had  not  offered  to  convey.  By  this  view  the  rights- 
of  the  parties  are  worked  out  much  more  satisfactorily.  The  de- 
fendant should  not  be  required  to  pay  for  what  he  is  not  going  to 
receive,  because  he  has  given  a  note.  Frequently,  a  note  is  given, 
simply  to  see  if  the  consideration  will  be  given.  Hunt  v.  Liver- 
more,  5  Pick.  (Mass.)  395;  Sutton  v.  Beckwith,  68  Mich.  303. 

b.    Conditions  Precedent. 

30.  A.  agrees  to  pay  freight  at  a  rate  to  be  determined  by 
designated  persons,  whose  determination  is  to  be  final.     Action- 
is  brought  against  him  without  any  determination  by  the  arbi- 
trators as  to  the  rate  due.     Is  he  liable? 

No.  Such  a  provision  is  a  valid  condition  precedent.  A.  only 
agreed  to  pay  at  such  a  rate  as  should  be  established  in  a  prescribed 
way,  and  "  cannot  be  compelled  to  acquiesce  in  the  determination  in 
any  other  manner,  and  until  a  rate  is  established,  no  liability  is  in- 
curred under  the  contract,  or  right  of  action  given."  D  &  EL 
Canal  Co.  v.  Penn.  Coal  Co.,  50  N.  Y.  250,  263. 

An  agreement  to  refer  all  matters  of  difference  to  arbitration  has 
been  generally  declared  void  by  the  courts  as  ousting  them  of  their 
jurisdiction,  but  that  idea  has  lost  favor  in  the  present  time,  and  is  fre- 
quently criticised  and  will  not  be  extended.  Condon  v.  Ry.  Co.,  14  Gratt. 
(Va.)  302,  313;  Kinney  v.  B.  &  O.,  etc.,  Assn.,  35  W.  Va.  385.  Wherever 
an  agreement  to  arbitrate  or  to  have  any  facts  determined  by  a  stated 
person  is  a  condition  precedent  to  a  right  of  recovery,  it  will  be  en- 
forced. 2  Parsons  on  Contracts  (8th  ed.).  *p.  709,  note  1,  cases  collected; 
Sweet  v.  Morrison,  116  N.  Y.  19,  27. 

In  Massachusetts,  however,  A.  would  probably  be  liable  in  the  case 
put  In  that  State  the  idea  in  ousting  a  court  from  its  jurisdiction  is 
more  rigorously  enforced  than  in  most  jurisdictions.  Reed  v.  Wash- 
ington Ins.  Co.,  138  Mass.  572,  575;  Badenfeld  v.  Mass.  Accident 
Assn.,  154  Mass.  77,  83. 

31.  A.  agrees  to  construct  a  building  for  B.  in  accordance 
with  certain  specifications.     He   uses  inferior  materials  and 
intentionally  violates   the  specifications   without  B.'s   consent, 
and  B.  refuses  to  pay  for  the  building,  but  occupies  it.     A. 
sues.     What  should  he  recover? 

A.  should  recover  nothing.  The  erection  of  the  building-  ac- 
cording to  the  specifications  is  a  condition  precedent  to  A.'s  right 


CONTRACTS.  109 

to  recover  upon  the  contract,  and  no  recovery  can  be  had  even 
upon  an  implied  obligation,  simply  because  the  building  remains 
upon  B.'s  land  and  is  occupied.  The  law  will  not  imply  an  obliga- 
tion to  pay  in  such  a  case  where  a  man  has  no  option  to  pay 
or  return  the  property.  Of  course,  if  A.  had  virtually  performed 
Ms  contract  he  could  recover,  but  the  above  is  not  such  a  case. 
Elliott  v.  Caldwell,  43  Minn.  357. 

Where  a  plaintiff  has  virtually  performed  his  part  of  a  contract 
a  slight  breach  will  not  bar  his  right  to  recover.  Thus,  where  A. 
agrees  to  teach  a  year  for  $300,  his  performance  is  a  condition  pre- 
cedent to  a  right  to  claim  the  money,  but  a  few  days'  absence  after 
part  performance  will  not  prevent  his  recovery.  Fillieul  v.  Arm- 
strong, 7  A.  &  E.  557.  See  also  Ques.  36  (infra). 

32.  A.   agrees  to  work  for  a  year  for  $1,000.     After  six 
months  lie  wrongfully  stops  work.     What  right  of  recovery  has 
he?     Suppose  he  stopped  owing  to  illness? 

Where  a  party  to  a  contract  wrongfully  refuses  to  perform,  and 
his  performance  is  a  condition  precedent  to  a  right  of  recovery,  he 
has  no  right  whatever  to  payment  for  services  rendered  before  his 
breach.  Where,  however,  the  breach  is  due  to  illness  and  is  not 
wrongful,  recovery  may  be  had  on  a  quantum  meruit  for  the  services 
rendered.  See  Quasi-Contracts,  Ques.  20,  23. 

c.     Warranties  as  Conditions. 

33.  A.  charters  to  B.  the  ship  Dove,  "now  at  sea,  having 
sailed  three  weeks  ago."     It  later  appears   that  she  had  not 
sailed  as  represented,  and  B.  refuses  to  accept  the  ship  on  the 
ground  that  the  breach  was  material.     A.  contends  that  the  clause 
quoted  was  merely  a  representation  and  not  a  warranty.     Judg- 
ment for  whom? 

If  the  representation  as  to  the  sailing1  of  the  ship  was  material, 
judgment  should  be  for  B.  It  is  frequently  a  very  important  ques- 
tion, whether  a  certain  clause  of  a  contract  is  a  representation  or  a 
warranty.  If  it  is  merely  a  representation,  the  other  party  has 
practically  no  relief  if  it  proves  untrue,  for  the  fact  that  a  represen- 
tation is  not  true  is  not  a  breach  of  the  contract  and  does  not  even 
give  a  cause  of  action,  unless  the  representation  was  made  fraudu- 
lentlv.  and  the  party  can  show  all  of  the  other  elements  necessary 
for  an  action  in  tort  for  deceit.  Whereas,  if  the  facts  stated  consti- 
tute a  warranty,  it?  falsity  alone  is  a  sufficient  defense.  Behn  v. 
Burness,  3  B.  &  S.  751. 

In  distinguishing  between  a  warranty  and  a  representation  the  only 
point  of  investigation  is  the  substantial  importance  of  the  facts  in 
th"e  disputed  clause  of  the  contract.  If  those  facts  are  important,  the 


110  QUESTIONS  AND  ANSWERS. 

clause  is  held  to  be  a  warranty  and  is  then  treated  as  an  express  con- 
dition. When  used  in  this  sense  a  warranty  is  always  a  condition 
and  is  different  from  the  term  when  used  in  sales.  In  Behn  v.  Burness 
(supra),  755,  the  court  says: 

"  But  with  respect  to  statements  in  a  contract  descriptive  of  the 
subject-matter  of  it,  or  of  some  material  incident  thereof,  the  true 
doctrine  *  *  *  appears  to  be,  generally  speaking,  that  if  such  de- 
scriptive statement  was  intended  to  be  a  substantive  part  of  the  con- 
tract, it  is  to  be  regarded  as  a  warranty,  that  is  to  say,  a  condition, 
on  the  failure  or  nonperformance  of  which,  the  other  party  may,  if 
he  is  so  minded,  repudiate  the  contract  in  toto." 

In  the  case  put,  therefore,  .B.  need  not  accept  the  ship.  Ollive  v. 
Booker,  1  Exch.  416;  Gray  v.  Moore,  37  Fed.  Rep.  266;  Wilfred  v. 
Myers,  40  id.  170. 

If  B.  should  accept  the  vessel,  however,  he  could  not  afterwards 
"  treat  the  descriptive  statement  as  a  condition,  but  only  as  an  agree- 
ment, for  a  breach  of  which  he  may  bring  an  action  to  recover  dam- 
ages." Behn  v.  Burness,  3  Best  &  Smith,  751,  756. 

d.    Breach  of  Conditions. 

34.  An  insurance  company  makes  an  express  condition  in  its 
policy  that  no  loss  occasioned  by  fire  shall  be  paid  for  except  it 
is  certified  to  by  the  minister  of  the  place.  A/s  property  burns 
down  and  the  minister  wrongfully  refuses  to  certify  the  loss. 
Can  he  recover  by  proving  the  loss  in  any  other  way? 

N"o.  Where  there  is  an  express  condition  made  by  the  parties  it 
must  be  performed.  Implied  conditions  are  inventions  of  the 
courts  for  working  justice,  and  the  courts  can  mold  them  as  they 
wish,  but  there  is  no  reason,  based  on  sound  principle,  why  parties 
should  not  live  up  to  their  express  conditions,  and  by  the  best  au- 
thority they  are  absolutely  required  to  do  so.  Worsley  v.  Wood,  6 
TernTRep/710;  Johnson  v.  Phoenix  Ins.  Co.,  112  Mass.  49.  But 
see  O'Xeill  v.  Mass.  Ben.  Assn.,  18  N.  Y.  Supp.  22,  where  the  bene- 
ficiary was  allowed  to  recover  on  a  life  insurance  policy,  where  a 
physician  obstinately  refused  to  certify  the  insured's  death,  al- 
though such  a  certificate  was  an  express  condition  precedent.  It 
is,  perhaps,  probable  that  some  other  courts  will  follow  this  case, 
but  it  rests  only  upon  the  hardship  of  a  contrary  decision.  In 
holding  in  that  case  that  the  claimants  were  simply  bound  to  u?e 
diligent  efforts  to  comply  with  tbe  stipulated  condition?,  tbe  court 
overlooked  the  binding  character  of  express  conditions  precedent. 

It  may  be  said,  in  general,  that  the  New  York  courts  are  less  rig- 
orous than  most  jurisdictions  in  enforcing  conditions  precedent  of  this 
nature.  They  go  so  far  as  to  hold  that  when  a  contractor  has  substan- 
tially performed  the  contract  an  prehitect's  certificate  is  not.  nec- 
essary, though  made  an  express  condition  precedent  to  payment  by  the 


CONTRACTS.  Ill 

terms  of  the  contract.  The  rule  that  recovery  may  be  had  where  a 
certificate  is  refused  through  gross  error,  (infra),  works  justice,  but  the 
further  relaxation  of  the  condition  precedent  does  away  with  the 
rights  of  the  defendant  It  is  neither  technical  nor  just  that  a  jury 
•should  be  allowed  to  pass  upon  the  fulfillment  of  a  contract  when  the 
parties  have  expressly  stipulated  that  a  third  party  named  shall  be 
sole  judge  as  to  the  satisfactory  completion  of  the  work.  The  defend- 
ant does  not  want  a  right  to  deduct  money  from  the  contract  price  for 
the  failure  of  the  plaintiff  to  make  certain  things  satisfactory,  and 
the  courts  should  recognize  his  rights  to  contract  for  perfectly  satis- 
factory work.  That  right,  however,  seems  denied  in  Crouch  v.  Gut- 
mann,  134  X.  Y.  45;  and  Nolan  v.  Whitney,  88  id.  648.  In  the  latter 
case,  the  court  says,  p.  650,  that  when  the  contractor  "  had  substan- 
tially performed  his  contract,  the  architect  was  bound  to  give  him  the 
certificate,  and  his  refusal  to  give  it  was  unreasonable "  and  that, 
therefore,  the  certificate  need  not  be  secured.  The  question  of  the 
"  substantial "  performance  is,  therefore,  of  necessity  left  to  the 
"  twelve  good  men  and  true  "  in  place  of  the  architect. 

A  condition  implied  in  fact  is  from  its  very  nature  like  an  ex- 
press condition,  as  it  is  a  necessary  implication  from  the  express 
terms,  and  such  a  condition  must  absolutely  be  performed.  Cad- 
well  v.  Blake,  6  Gray  (Mass.),  402. 

There  are,  however,  several  instances  where  a  party  has  not  per- 
formed an  express  condition  or  one  implied  in  fact  and  may  yet  re- 
cover. Thus  where  a  superintendent  or  an  engineer  is  to  certify  to 
the  quality  of  work  before  it  is  to  be  paid  for,  a  contractor  may  re- 
cover for  work  done  where  he  can  show  (1)  that  the  certificate  is  with- 
held through  fraud  or  bad  faith  on  the  part  of  the  engineer;  or  (2) 
through  collusion  between  the  defendant  and  the  engineer;  or  (3) 
through  a  manifest  mistake  made  by  the  engineer.  Chism  v.  Schipper, 
51  X.  J.  Law.  1 :  Chicago,  etc..  R.  K.  Co.  v.  Price,  138  U.  S.  185;  Hudson 
v.  McCartney.  33  Wis.  331,  and  cases  cited.  Where  the  defendant  him- 
self prevents  or  materially  hinders  the  performing  of  a  condition 
precedent,  such  action  ft.  of  course,  a  waiver  of  his  right  to  insist  upon 
it,  and  recovery  may  be  had  by  pleading  tte  prevention  or  hindrance, 
unless  the  circumstances  of  the  contract  show  that  the  risk  of  pre- 
vention was  assumed  by  the  plaintiff.  Seipel  v.  Ins.  Co.,  84  Penn.  St.  *7. 

In  other  cases,  however,  which  are  not  of  the  nature  of  those  men- 
tioned above,  express  conditions  must  be  performed  to  entitle  a  party 
to  recover,  no  matter  how  good  an  excuse  he  may  have  for  not  per- 
forming, as.  for  example,  illness.  Spalding  v.  Rosa,  71  N.  Y.  40;  John- 
son v.  Walker,  155  Mass.  253. 

35.  A.  agrees  fo  moJ'e  a  suit  of  clothes  to  the  satisfaction  of 
B.      Upon  the  completion  of  the  work,  B,  refuses  to  accept  the 


112  QUESTIONS  AND  ANSWERS. 

suit  and  returns  the  same,  but  is  capricious  in  his  dissatisfac- 
tion.    Has  A.  any  right  of  recovery? 

If  the  terms  of  the  contract  were  sufficiently  strong  to  allow  B. 
to  refuse  the  suit,  if  actually  dissatisfied,  though  his  dissatisfaction 
was  merely  capricious,  then  he  should  be  allowed  to  do  so.  B. 
has  stipulated  for  work  to  his  satisfaction,  and  the  question  of 
whether  it  would  satisfy  others  is  really  irrelevant.  In  Brown 
v.  Foster,  113  Mass.  136,  the  court  said  that  if  the  plaintiff  "  con- 
tracted that  the  articles,  when  manufactured,  should  be  satisfactory 
to  the  defendant,  he  can  recover  only  upon  the  contract  as  it  was 
made;  and  even  if  the  articles  furnished  by  him  were  such  that  the 
other  party  ought  to  have  been  satisfied  with  them,  it  was  yet  in 
the  power  of  the  other  to  reject  them  as  unsatisfactory.  It  is  not 
for  anyone  else  to  decide  whether  a  refusal  to  accept  is  or  is  not 
reasonable,  when  the  contract  permits  the  defendant  to  decide 
himself  whether  the  articles  furnished  are  to  his  satisfaction.  Al- 
though the  compensation  of  the  plaintiff  *  *  *  may  thus  be 
dependent  upon  the  caprice  of  another,  who  unreasonably  refuses 
to  accept  the  articles  manufactured,  yet  he  cannot  be  relieved  from 
the  contract  into  which  he  has  voluntarily  entered/' 

So,  also,  in  Gibson  v.  Cranage,  39  Mich.  49,  where  an  artist  agreed  to 
paint  a  portrait  which  should  not  be  paid  for  if  unsatisfactory,  the 
<?ourt  held  that,  even  though  the  picture  might  be  an  excellent  one,  and 
the  defendant  ought  to  have  been  satisfied  with  it,  yet  "  under  the 
agreement  the  defendant  was  the  only  person  who  had  the  right  to 
decide  this  question.  When  parties  thus  deliberately  enter  into  an 
agreement  which  violates  no  rule  of  public  policy,  and  which  is  free 
from  all  fraud  or  mistake,  there  is  no  hardship  whatever  in  holding 
them  bound  by  it."  See  also  Wood,  etc.,  Co.  v.  Smith,  50  Mich.  565; 
Zaleski  v.  Clark,  44  Conn.  218,  accord.  The  only  requirement  necessary 
is  that  the  defendant  shall  be  honestly  dissatisfied.  It  makes  no 
difference  how  good  or  how  poor  a  reason  he  has  for  his  dissatisfac- 
tion. McClure  v.  Briggs,  58  Vt.  82;  Exhaust  Ventilator  Co.  v.  Chicago, 
etc.,  Ry.  Co.,  66  Wis.  218;  Seeley  v.  Welles,  120  Penn.  St.  69. 

The  courts  will  not  give  the  defendant  such  a  wide  range  of  discre- 
tion, however,  unless  he  has  contracted  for  it  in  unmistakable  terms. 
In  Hawkins  v.  Graham,  149  Mass.  284;  Holmes,  J.,  thus  accurately  ex- 
presses the  law: 

"  The  only  question  in  this  case  is,  whether  the  written  agreement 
between  the  parties  left  the  right  of  the  plaintiff  to  recover  *  *  * 
dependent  upon  the  actual  satisfaction  of  the  defendant.  Such  agree- 
ments usually  are  construed,  not  as  making  the  defendant's  declara- 
tion of  dissatisfaction  conclusive,  in  which  case  it  would  be  difficult  to 
say  that  they  amounted  to  contracts,  but  as  requiring  an  honest  ex- 
pression. In  view  of  modern  modes  of  business,  it  is  not  surprising 
that  in  some  cases,  eager  sellers  or  selling  agents  should  be  found 
taking  that  degree  of  risk  with  unwilling  purchasers,  especially  where 


CONTRACTS.  113 

taste  is  involved  (citing  eases  discussed  and  cited  supra).  Still,  when 
the  consideration  furnished  is  of  such  a  nature  that  its  value  will  be 
lost  to  the  plaintiff,  either  wholly  or  in  great  part,  unless  paid  for,  a 
just  hesitation  must  be  felt,  and  clear  language  required,  before  de- 
ciding that  payment  is  left  to  the  will,  or  even  to  the  idiosyncrasies,  of 
the  interested  party.  In  doubtful  cases,  courts  have  been  inclined  to 
construe  agreements  to  do  the  thing  in  such  a  way  as  reasonably  ought 
to  satisfy  the  defendant"  See  also  2  Parsons  on  Contracts  (8th  ed.), 
62,  note  1. 

e.    Part  Performance  and  Breach,  in  Limine. 

36.  A.  agrees  to  make  several  payments  of  money  for  B.,  in 
return  for  a  certain  service  to  be  rendered.     A.  fails  to  make 
the  final  payment  and  B.  refuses  to  act.     Has  A.  any  right  of 
action? 

If  the  payments  already  made  by  A.  were  of  the  essence  of  the 
contract  he  would  have  a  good  right  of  action.  "  It  is  a  clearly  rec- 
ognized principle,  that,  if  there  is  only  a  partial  failure  of  perform- 
ance by  one  party  to  a  contract,  for  which  there  may  be  a  compensa- 
tion in  damages,  the  contract  is  not  put  an  end  to."  Franklin  v. 
Miller,  4  A.  &  E.  599,  per  Littledale,  J.;  2  Parsons  on  Contracts 
(8th  ed.),  795;  Taylor  v.  Eenn,  79  111.  181. 

It  may  be  stated,  in  general,  that  a  breach  after  part  performance 
is  only  fatal  when  it  goes  to  the  essence  of  the  contract.  See  Boone 
v.  Eyre,  1  H.  Bl.  273,  note. 

If,  however,  in  a  contract  for  personal  services  for  a  year,  at  a 
stated  sum  for  the  term,  the  employee  should  irretrievably  break  his 
contract  after  eleven  months'  service,  upon  strict  principle  he  would 
not  be  entitled  to  recover  anything  for  his  past  services.  Eldridge  v. 
Howe,  7  111.  91;  Olmstead  v.  Beale,  19  Pick.  529.  In  some  jurisdictions, 
however,  a  recovery  is  allowed,  even  in  such  a  case,  on  the  principles 
of  quasi  contracts,  the  defendant  being  required  to  pay  the  value  of 
the  services  rendered  on  a  quantum  meruit.  Britton  v.  Turner,  6  N. 
H.  481;  Parcell  v.  McComber,  11  Xeb.  209;  Duncan  v.  Baker,  21  Kan.  99. 

37.  A.  agrees  ro  sell  certain  land  to  B.  with  the  timber  grow- 
ing thereon.     Before  the  day  fixed  for  the  transfer,  A.   cuts 
down  a  number  of  the  trees  and  B.  refuses  to  taJce  the  land.     A. 
sues,  alleging  that  his  breach  is  immaterial.     Can  he  recover? 

No.  This  is  a  breach  in  limine  and  is  regarded  very  differently 
from  a  breach  after  part  performance.  When  a  breach  occurs  at 
the  beginning  of  a  contract  it  need  not  go  to  the  essence  of  the 
contract  in  order  to  give  the  other  party  the  right  to  rescind.  A 
slight  breach  will  then  be  fatal.  Smyth V.  Sturges,  108  N.  Y.  495; 
Tullv  v.  Howling.  L.  R.  2  Q.  B.  I>iv!  182.  In  Hoare  v.  Rennie,  5 
Hurl.  &  N.  19,  Pollock,  C.  B.,  said:  "  The  only  question  we  have  to 
8. 


114  QUESTIONS  AND  ANSWEES. 

deal  with  is  'whether,  on  a  contract  like  this,  if  the  sellers  at  the 
outset  send  a  less  quantity  than  they  are  bound  to  send,  so  as  to 
begin  with  a  breach,  they  can  compel  the  purchasers  to  accept  and. 
pay  for  that,  the  sending  of  which  was  a  breach  and  not  a  periorm- 
ance  of  the  agreement."  That  was  a  case  of  a  breach  in  making  the 
first  of  four  shipments  of  iron  agreed  upon,  and  it  was  held  to  be 
fatal. 

But,  even  in  the  case  of  a  breach  in  limine,  the  court  will  not 
consider  it  fatal,  unless  it  has  some  material  bearing.  Tarrabochia 
v.  Hickie,  1  Hurl.  &  N.  183. 

The  fact  is  to  be  carefully  moted,  however,  that  the  distinction  be- 
tween a  breach  in  limine  and  after  part  performance  is  only  main- 
tained in  cases  of  conditions  implied  in  law,  where  the  condition  of 
one  man's  recovery  is  the  performance  of  his  own  promises.  In  ex- 
press conditions  and  conditions  implied  in  fact,  absolute  performance 
is  essential.  See  Ques.  34,  (supra). 

f .    Divisible  Contracts. 

38.  A.  agreed  to  ship  B.  5,000  tons  of  iron,  1,000  tons  to  be 
shipped  per  month  and  to  be  paid  for  upon  delivery.  A.  shipped 
only  400  tons  in  the  first  month  and  800  tons  in  the  second,  and 
B.,  upon  learning  these  facts,  refused  to  accept  the  shipments 
and  claimed  a  right  to  rescind.  A.  claimed  that  each  shipment 
was  a  separate  matter,  and  that  a  default  in  one  shipment  gave 
B.  no  right  to  refuse  a  later  installment.  Which  contention 
should  prevail? 

B.  would  be  entitled  to  rescind  by  the  weight  of  authority  in  this 
country.  The  contract  is»a  single  one  for  the  sale  of  5,000  tons  of 
iron,  and  the  arrangement  for  payment  and  shipment  only  stipu- 
lated how  it  should  be  carried  out.  A  divisible  contract  is  one 
where  the  payment  and  consideration  are  apportioned,  so  that  part 
payment  may  be  secured  after  part  delivery,  but  it  is  still  a  single 
contract,  relating,  however,  to  a  series  of  transactions.  The  breach 
of  such  a  contract  is,  therefore,  to  be  looked  at  as  any  other  breach, 
to  ascertain  how  far  it  goes  to  the  essence.  In  the  present  case  it 
would  entitle  B.  to  rescind.  Norrington  v.  "Wright,  115  U.  S.  188. " 
This  is  the  leading  case  on  the  point  and  represents  the  weight  of 
authority  in  this  country.  See  also  Barrie  v.  Earle,  143  Mass.  1, 
where  the  entirety  of  such  a  contract  was  illustrated  by  a  ruling 
that  a  man  who  had  agreed  to  buy  a  series  of  books  and  pay  for 
each  upon  delivery,  could  not  rescind  the  contract  upon  the  ground 
of  fraud,  without  returning  two  volumes  which  he  had  received  and 
paid  for. 

The  view  of  the  English  courts  in  regard  to  such  contracts  is,  how- 
ever, that  each  installment  of  goods  and  the  payment  for  it  constitute 


CONTRACTS.  115 

a  distinct  contract,  and  that  no  default  in  one  installment  can  justify 
a  refusal  to  perform  the  next.  Simpson  v.  Crippin,  I*  R.  8  Q.  B.  14. 
See  also  2  Parsons  on  Contracts  (8th  ed.),  *p.  571,  note  1,  and  cases  cited. 
The  English  view  seems  unsound  and  unsatisfactory  in  practice,  but 
has  been  followed  in  Blackburn  7.  Keilly,  47  N.  J.  Law,  290;  Ski  lima  11 
Hardware  Co.  v.  Davis,  53  id.  144.  See  also  Johnson  v.  Allen,  78  Ala. 
387;  Hansen  v.  Consumers,  etc.,  Co.,  73  Iowa,  77;  Haines  v.  Tucker,  50 
N.  H.  307;  Cahen  v.  Platt,  69  X.  Y.  348;  Scott  v.  Coal  Co.,  89  Penn.  St. 
231. 

39.  A.  agrees  to  sell  land  to  B.,  the  latter  to  pay  in  five  install- 
ments of  $1,000  each,  and  the  deed  to  be  given  upon  the  pay- 
ment of  the  fifth  installment.  B.  fails  to  pay  as  the  installments 
become  due,  and  after  the  day  fixed  for  the  payment  of  the  last 
installment,  A.  sues  for  the  entire  amount.  B.  defends  on  the 
ground  that  the  deed  has  not  been  tendered.  Judgment  for 
whom?  If  for  A.,  for  what  amount? 

Upon  sound  principle  judgment  should  be  for  A.  for  $4,000. 
Before  the  last  installment  was  due  A.  had  a  perfect  right  to  sue 
for  the  four  installments  due,  without  a  tender  of  the  deed.  By 
the  terms  ol  the  contract  the  covenants  to  pay  the  first  four  install- 
ments were  independent,  and  the  fact  that  the  fifth  installment  is 
due,  which  was  only  to  be  paid  upon  conveyance,  cannot  make  the 
other  covenants  also  dependent  upon  the  tender  of  the  deed.  In 
Duncan  v.  Charles,  5  111.  561,  567,  where  a  similar  contract  was  un- 
der discussions,  the  court  said: 

"  In  no  imaginable  case  can  an  independent  covenant,  which  has 
been  once  broken  and  upon  which  a  cause  of  action  has  con- 
eequently  accrued,  be  converted  or  shifted  into  a  dependent 
covenant."  See  also  Sheeren  v.  Moses,  84  111.  448. 

For  the  recovery  of  the  last  installment,  however,  a  tender  of  the 
deed  would  be  necessary.  The  contract  makes  that  payment  and 
the  giving  of  the  deed  dependent.  There  is  no  difficulty,  in  prin- 
ciple, in  enforcing  such  a  contract  in  which  there  is  both  a  de- 
pendency and  an  independency  of  covenants.  Duncan  v.  Charles, 
(supra). 

It  was  held,  however,  in  Beecher  v.  Conradt.  13  N.  Y.  108,  that  in 
such  a  contract  after  the  last  installment  came  due  the  payment  of  the 
whole  of  the  purchase  money,  and  the  conveyance  of  the  land  became 
dependent  acts.  Such  a  decision  seems  to  violate  sound  principle,  but 
is  still  law  in  New  York.  Eddy  v.  Davis,  116  N.  Y.  247.  252.  And  in 
Connecticut  the  reasoning  that  where  several  items  are  due  they  must 
all  be  sued  upon  in  one  action  has  been  carried  to  the  extreme  limit. 
Burritt  v.  Belfy.  47  Conn.  323.  It  seems  unreasonable,  however,  that 
•where  money  is  originally  due  in  installments,  a  defense  which  was 
originally  only  good  as  to  the  last  of  the  installments,  if  they  are 


116  QUESTIONS  AND  ANSWERS. 

enforced  severally,  should,  by  the  mere  lapse  of  time,  be  construed  so 
as  to  "  leaven  the  whole  lump." 

The  New  York  cases,  however,  show  the  strong  tendency  of  the 
courts  to  construe  conditions  as  concurrent  for  the  greater  protection 
of  the  parties. 

In  many  cases  of  conveyance  and  in  many  other  cases  where  condi- 
tions are  concurrent,  courts  often  drop  into  somewhat  inexact  lan- 
guage about  the  parties  being  "  ready  and  willing "  to  convey  or  to 
perform.  Of  course  the  mere  mental  state  of  being  "  ready  and  will- 
ing," if  unexpressed,  would  not  be  sufficient.  "  By  the  term  '  tender  '  is 
generally  meant  the  actual  physical  production  of  the  deed,  and  the 
reaching  it  out,  with  words  of  offer  of  it,  to  the  vendee."  Such  a 
formality  is  frequently  unnecessary,  but  the  law  does  require  a  party 
so  to  act  that  he  may  be  plainly  understood.  Lawrence  v.  Miller,  86 
N.  Y.  131,  137. 

g.     Waiver  of  Performance.     Anticipatory   Breach.. 

40.  A.  agrees  to  convey  land  to  B.  on  September  1st,  and 
B.  agrees  to  purchase  on  that  day.  On  August  1st  B.  says 
that  he  will  never  carry  out  the  contract,  and  on  August  *2d 
A.  sues  for  breach  of  contract.  Can  he  recover? 

It  is  held  in  England  that  where  a  day  is  fixed  for  perform- 
ance, if  one  of  the  parties  declares  that  he  will  not  perform,  such 
a  declaration  gives  the  other  a  good  right  of  action  at  once,  al- 
though the  day  of  performance  has  not  arrived.  Hochster  v.  De  la 
Tour,  2  El.  &  B.  678.  The  case  is  based  largely  upon  arguments  of 
convenience.  At  p.  690,  Lord  Campbell  says: 

"  It  seems  strange  that  the  defendant,  after  renouncing  the  con- 
tract, and  absolutely  declaring  that  he  will  never  act  under  it, 
should  be  permitted  to  object  that  faith  is  given  to  his  assertion, 
and  that  an  opportunity  is  not  left  to  him  of  changing  his  mind." 

So,  also,  where  a  man  promises  to  marry  a  woman  on  a  certain 
day,  and  before  that  time  marries  another,  he  may  be  sued  at 
once.  Short  v.  Stone,  8  Q.  B.  358.  And  where  a  man  contracts 
to  lease  property  on  a  certain  day,  and  before  that  day  leases  to 
another,  he  may  be  sued  before  the  day  of  performance.  Ford  v. 
Tiley,  6  Barn.  &  C.  325. 

These  cases  have  been  followed  in  most  of  the  States 
where  the  question  of  suit  upon  an  anticipatory  breach  has 
been  settled.  In  Burtis  v.  Thompson,  42  N".  Y.  246,  the  defend- 
ant promised  to  marry  the  plaintiff  "  in  the  fall,"  but  early  in 
October  announced  that  he  would  not  perform  the  contract,  and 
the  court  held  that  the  action  could  be  brought  immediately. 
Hochster  v.  De  la  Tour  is  approved  by  Dwight,  C.,  in  Howard  v. 
Daly,  61  N.  Y.  362,  but  merely  by  way  of  an  elaborate  dictum 
upon  which  the  rest  of  the  court  expressed  no  opinion.  In  Shaw 
v.  Republic  Life  Ins.  Co.,  69  K  Y.  286,  293,  the  court  re- 


CONTRACTS.  117 

fused  to  concur  in  the  English  cases,  but  the  point  was  not  specifi- 
cally raised.  They  there  held  that  where  the  defendant  declares 
that  he  will  not  perform  and  does  not  withdraw  his  declaration 
before  the  day  arrives,  the  plaintiff  is  excused  for  a  nonperfonn- 
ance  on  his  part,  and  may  recover  when  the  day  has  passed.  See 
also  Nichols  v.  S.  S.  Co.,  137  N.  Y.  471,  486;  Wharton  &  Co. 
v.  Winch,  140  id.  287.  Since  Burtis  v.  Thompson  (supra)  the 
question  of  a  right  to  sue  upon  an  anticipatory  breach  has  not 
been  decided  in  New  York,  and  is  expressly  left  open  by  the  two 
cases  last  cited. 

Action  upon  an  anticipatory  breach  is  allowed  in: 

Iowa:  Crabtree  v.  Messersmith,  19  Iowa,  179;  McCormick  v. 
Basal,  46  id.  235. 

Illinois:    Kadish  v.  Young,  108  111.  170. 

California:    Eemy  v.  Olds,  88  Cal.  537. 

The  question  is  discussed  but  not  settled  in  Maryland.  Dugan 
v.  Anderson,  36  Md.  567;  Pinckney  v.  Dambmann,  72  id.  173,  182. 
The  question  can  hardly  be  said  to  be  settled  in  Michigan.  But  see 
Sheahan  v.  Barry,  27  Mich.  217. 

In  Daniels  v.  Newton,  114  Mass.  530,  the  question  was  squarely 
raised,  and  after  a  most  elaborate  examination  of  the  authorities  it 
was  held  that  where  a  defendant  notifies  the  plaintiff  that  he  will 
not  perform  a  contract  by  which  he  is  bound  to  take  a  conveyance 
of  land  on  a  future  day,  such  a  notice  cannot  be  a  breach  of  the 
contract  giving  an  immediate  right  of  action,  before  the  time  set  for 
performance  has  arrived.  It  may  excuse  the  plaintiff  from  pre- 
paring to  perform  and  "  it  may  destroy  all  capacity  of  the  party,  so 
disavowing  its  obligations,  to  assert  rights  under  it  afterwards,  if 
the  other  party  has  acted  upon  such  disavowal.  But  we  are  un- 
able to  see  how  it  can,  of  itself,  constitute  a  present  violation 
of  any  legal  rights  of  the  other  party,  or  confer  upon  him  a 
present  right  of  action.  *  *  *  Until  the  time  arrives 
when,  by  the  terms  of  the  agreement,  he  is  or  might  be  entitled 
to  its  performance,  he  can  suffer  no  injury  or  deprivation,  which 
can  form  a  ground  of  damages." 

The  reasoning  in  this  case  seems  sound,  and  in  jurisdictions 
where  the  point  is  not  settled  should  have  great  weight.  On  prin- 
ciple it  is  difficult  to  see  how  there  can  be  a  breach  of  performance 
before  the  date  of  performance  has  arrived;  but  where  the  plaintiff 
has  acted  upon  an  unqualified  disavowal  of  the  contract,  it  is  right 
that  the  defendant  should  be  estopped  afterwards  to  say  that  he  was 
ready  to  perform,  as  suggested  above.  See  also  Rayburn  v.  Corn- 
stock,  80  Mich.  448,  452;  Zuck  v.  McClure,  98  Penn.  St.  541. 

h.     Contracts  Conditional  upon  Notice. 

41.  A.  takes  out  a  policy  of  insurance  upon  B.'s  life  and 
B.  agrees  to  do  nothing  to  render  the  policy  void.  He  has 
never  seen  the  policy,  and  without  knowing  that  he  will  void 


118  QUESTIONS  AND  ANSWERS. 

the  policy  by  leaving  the  country,  does  so.     Is  he  liable  for  breach 
of  contract? 

No.  Having  had  no  notice  that  leaving  the  country  would 
render  the  policy  void,  and  having  no  practical  means  of  learning 
that  fact,  unless  notified  by  the  plaintiff,  he  would  not  be  liable  for 
the  breach. 

"  The  rule  to  be  collected  from  the  cases  seems  to  be  this,  that 
where  a  party  stipulates  to  do  a  certain  thing  in  a  certain  specific 
event,  which  may  become  known  to  him,  or  with  which  he  can 
make  himself  acquainted,  he  is  not  entitled  to  any  notice,  unless 
he  stipulates  for  it;  but  when  it  is  to  do  a  thing  which  lies  within 
the  peculiar  knowledge  of  the  opposite  party,  then  notice  ought  to 
be  given  him.  That  is  the  common  sense  of  the  matter,  and  is 
what  is  laid  down  in  all  the  cases  on  the  subject,  and  if  there  are  any 
to  be  found  which  deviate  from  this  principle,  it  is  quite  time  that 
they  should  be  overruled."  Per  Lord'Abinger,  C.  B.,  in  Vyse  v. 
Wakefield,  6  Mees.  &  W.  442. 

VIII.     CONTRACTS  IMPOSSIBLE  OF  PERFORMANCE. 

42.  A.  conveys  land  to  B.,  the  latter  covenanting  only  to 
build  certain  kind  of  buildings  upon  it.  The  land  is  then 
taken  by  act  of  legislature  and  used  for  other  purposes.  Has 
A.  a  right  of  action?  If  so,  would  damages  be  substantial  or 
nominal  ? 

A.  would  have  no  right  of  action  whatever.  Anything  which 
the  law  makes  impossible  of  performance  without  any  fault  on  the 
part  of  the  defendant  the  law  will  excuse.  Bailey  v.  De  Crespigny, 
L.  R.  4  Q.  B.  180. 

Where  it  is  a  foreign  law,  i.  e.,  the  law  of  another  State,  which 
renders  the  performance  impossible,  it  is  a  question  of  fact,  whether 
or  not  performance  is  impossible. 

There  are  three  general  classes  of  cases  in  which  impossibility  Is  an 
excuse  for  nonperformance  of  a  contract: 

1.  Where  domestic  law  forbids  performance,  as  in  the  case  above. 

2.  Where  the  contract  rests  upon  the  supposition  of  the  existence  of 
subject-matter  which  is  destroyed. 

3.  Where  services  are  contracted  for  which  are  of  a  personal  nature, 
and  sickness  or  death  prevents.    In  none  of  these  cases  can  the  other 
party  to  the  contract  recover  for  nonperformance. 

Thus,  as  an  example  of  the  second  class,  where  A.  contracts  to  make 
repairs  upon  B.'s  building,  and  it  is  destroyed,  A.  will  be  excused  for 
nonperformance.  "  The  agreement  on  both  sides  is  upon  the  implied 
condition  that  the  chattel  or  building  shall  continue  in  existence,  and 
the  destruction  of  it  without  the  fault  of  either  of  the  parties  will 
excuse  performance  of  the  contract,  and  leave  no  right  of  recovery  of 


CONTRACTS.  119 

damages  in  favor  of  either  against  the  other."  Butterfleld  v.  Byron, 
153  Mass.  517,  519,  and  cases  Cited.  This  rule  does  not  apply,  however, 
to  a  case  where  A.  contracts  to  erect  the  building  entire.  In  such  a 
case  he  is  solely  responsible  for  it  and  if  it  is  destroyed  he  must  rebuild 
it  Performance  in  such  a  case,  i.  e.,  the  delivery  of  a  completed  build- 
ing, is  not  impossible,  but  simply  more  difficult.  If  a  day  were  fixed 
for  the  delivery,  and  destruction  made  the  completion  of  the  building 
by  that  time  impossible,  of  course  the  contractor  would  be  excused 
for  nonperformance  in  that  respect,  but  the  mere  hardship  would 
not  excuse  him.  Butterfield  v.  Byron,  (supra),  and  cases  cited;  Cutliff 
v.  McAnally,  88  Ala.  507.  Of  course,  intentional  destruction  would  be 
no  defense. 

In  the  third  class  of  cases  the  law  is  universally  established  that 
sickness  or  death  is  such  an  act  of  God  as  to  excuse  performance,  but 
where  it  may  be  plainly  foreseen,  it  constitutes  no  excuse  for  non- 
performance.  Jennings  v.  Lyons,  39  Wis.  553.  Nor  would  it  do  so, 
probably,  if  It  were  wilfully  brought  about  after  the  contract  was 
entered  into.  Allen  v.  Baker,  86  N.  G.  91,  97. 

Of  course  it  is  always  competent  to  show  that  the  party  in  default 
willingly  ran  the  risk  of  performance  becoming  impossible,  and  any 
man  may  so  contract,  if  he  sees  fit.  Where  such  a  question  is  at  issue 
it  is  simply  a  question  of  fact  whether  "  the  party  really  did  intend  to 
warrant  that  to  be  possible  which  was  impossible."  Clifford  v.  Watts, 
L.  R.  5  C.  P.  577,  585. 

In  Louisiana,  in  accordance  with  the  principles  of  the  civil  law,  the 
courts  are  more  liberal  in  excusing  a  party  on  the  ground  of  impos- 
sibility. Engster  v.  West,  35  La,  Ann.  119. 

For  a  general  citation  of  authorities  upon  the  subject  of  Impossi- 
bility, see  2  Parsons  on  Contracts  (8th  ed.),  786,  note  1;  787,  note  1. 

IX.     ILLEGAL  CONTRACTS. 

a.    In  Restraint  of  Trade. 

43.  Two  gas  companies  owning  equal  and  exclusive  rights 
under  a  municipal  franchise  combine  and  apportion  the  city 
between  them  for  the  purpose  of  avoiding  competition  and  rais- 
ing prices.  Will  such  a  contract  be  sustained  by  the  courts? 

No.  Such  a  contract  would  be  illegal  upon  the  grounds  of  pub- 
lic policy  as  being  in  restraint  of  trade,  and  in  promotion  of  mo- 
nopolies. Companies  in  such  positions  owe  a  public  duty  and  will 
not  be  allowed  to  disregard  that  duty  and  combine  in  such  a  way 
as  to  turn  their  privileges  solely  to  their  own  advantage  by  stifling 
competition.  Chicago  Gas  Light  Co.  v.  People's,  etc.,  Co.,  121  111. 
530. 

In  considering  whether  a  contract  is  against  public  policy,  as  un- 
reasonably in  restraint  of  trade,  the  kind  of  business  to  which  the 
contract  relates  must  be  considered.  Thus,  as  suggested  above,  wher* 
companies  owe  a  public  duty,  the  courts  will  be  very  strict  in  passing 
upon  contracts  whereby  the  public  will  be  deprived  of  competition 


120  QUESTIONS  AND  ANSWERS. 

and  left  to  the  mercies  of  a  monopoly.  Thus  carriers  can't  pool  their 
earnings  or  go  into  partnership,  as  they  also  owe  a  duty  to  the  public. 
Hooker  v.  Vanderwater,  4  Den.  (N.  Y.)  349;  Texas,  etc.,  Ry.  Co.  v. 
So.  Pac.  Ry.  Co.,  41  La.  Ann.  970.  So.  also,  on  similar  grounds,  courts 
will  not  uphold  contracts  which  seek  to  organize  or  maintain  a  monop- 
oly in  the  supply  of  the  necessaries  of  life,  as  in  coal.  Arnot  v.  Pitts- 
ton,  etc.,  Coal  Co.,  68  N.  Y.  558. 

It  is  to  be  observed,  however,  that  frequently  individuals  may  com- 
bine to  do  a  thing  which  would  be  illegal  if  done  by  corporations 
owing  a  public  duty.  Thus  stevedores,  who  owe  no  public  duty,  may 
legally  apportion  their  business  though  gas  companies  may  not.  Collins 
v.  Locke,  L.  R.  4  App.  Cas.  674.  See  also  Marsh  v.  Russell,  66  X.  Y. 
288;  Hopkins  v.  Ensign,  122  N.  Y.  144,  149.  But  where  either  private 
persons  or  public  corporations  are  simply  trying  to  obtain  a  monopoly 
and  force  prices,  their  contracts  will  not  be  sustained. 

The  question  is  whether  the  agreement  imposes  an  unreasonable 
restraint  upon  trade,  and  where  the  object  is  simply  to  secure  freedom 
from  competition  and  inflate  prices,  the  contract  will  in  almost  every 
case  be  declared  void.  Am.  Biscuit  Co.  v.  Klotz,  44  Fed.  Rep.  721;  2 
Parsons  on  Contracts  (8th  ed.),  875,  note  1,  cases  cited.  But  see  Cen- 
tral, etc.  Co.  v.  Cushman,  143  Mass.  353. 

The  application  of  the  rule  as  to  contracts  in  restraint  of  trade  to 
the  classes  of  cases  above  noted  is  an  extension,  of  recent  years,  of  the 
principle  that  a  contract  was  illegal  which  sought,  for  any  considera- 
tion, to  keep  a  man  out  of  his  trade  in  an  unlimited  territory,  to  lessen 
competition.  This  rule  had  its  origin  in  England  at  a  time  when  it 
was  almost  impossible  for  a  man  to  change  his  trade  and  when  the 
custom  of  apprenticeship  was  in  full  force.  It  was  then  held  that  a 
contract  unlimited  in  extent,  i.  e.,  covering  the  whole  kingdom,  was  ille- 
gal. In  recent  years,  however,  the  test  of  a  territorial  limit  has  been 
abandoned  in  England,  and  the  reasonableness  of  the  restraint  for  the 
protection  of  the  other  party  is  now  the  sole  test.  If  "  the  extent  of  the 
restraint  is  not  greater  than  can  possibly  be  required  for  the  protection  of 
the  plaintiff,  it  is  not  unreasonable."  Fry,  J.,  in  Rousillon  v.  Rousillon, 
14  Ch.  Div.  351,  364.  See  also  Rogers  v.  Maddox  [1892],  3  Chan.  346; 
Badische,  etc.,  Fabrik  v.  Schott  [lb92J,  id.  447.  In  the  United 
States  the  tendency  of  the  courts  is  in  accord  with  the  English  cases 
above  cited,  making  the  validity  of  the  restraint  depend  upon  its 
reasonableness  under  all  the  circumstances.  In  Massachusetts,  how- 
ever, the  old  English  rule  is  still  followed,  and  it  is  held  that  any  con- 
tract requiring  a  restraint  over  the  entire  State  is  necessarily  invalid. 
Alger  v.  Thacher,  19  Pick.  51;  Bishop  v.  Palmer,  146  Mass.  469. 

By  act  of  Congress,  July  2,  1890  (26  Stat.  at  Large,  209),  contracts 
and  monopolies  in  restraint  of  trade  are  made  criminal,  but  this  stat- 
ute only  applies  to  contracts  of  an  interstate  nature.  Congress  has 
no  authority  to  legislate  in  regard  to  contracts  which  are  to  be  per- 
formed wholly  within  any  State.  For  cases  of  indictments  under  this 
statute,  see  U.  S.  v.  Greenhut,  50  Fed.  Rep.  469;  U.  S.  v.  Nelson,  52  id. 
646. 


CONTRACTS.  121 

44.  A.  enters  into  a  scheme  to  illegally  advance  the  price  of 
lard  by  "  cornering  the  market "  and  employs  B.  as  his  broker, 
who  knows  of  A.'s  intention.     B.  defrauds  A.  by  falsely  charg- 
ing commissions  and  A.  sues.     What  should  he  recover? 

By  the  weight  of  authority  in  this  country  A.  would  have  no 
right  of  action  whatever.  The  courts  will  refuse  altogether  to  in- 
vestigate illegal  transactions.  Leonard  v.  Poole,  114  K".  Y.  371. 

b.    Wag-eiing1  Contracts. 

45.  A.  orders  B.,  his  broker,  to  sell  wheat  "  short "  for  future 
delivery,  his   intention  being  simply  to  speculate  and  not  to 
buy  the  grain  for  delivery.    B.  is  ignorant  of  these  facts.     Can 
he  recover  for  commissions  due?    Suppose  he  had  known  of  A.'s 
intentions? 

The  sale  of  property  which  one  does  not  possess  is  not  neces- 
sarily void  as  a  wager,  and  may  well  be  perfectly  legitimate.  The 
intention  of  the  parties  merely  to  gamble,  at  the  time  of  entering 
into  the  contra  t,  is  the  important  thing.  If  the  actual  transfer 
of  property  is  never  intended,  then  the  contract  for  commissions  is 
void  if  the  gambling  nature  of  the  contract  is  known  to  both  par- 
ties. In  the  case  put,  however,  where  B.  was  ignorant  of  his  prin- 
cipal's intention,  he  could  recover  his  commissions  for  executing  a 
contract  which,  on  its  face,  might  be  perfectly  legal.  Where  he 
had  full  knowledge  of  A.'s  illegal  purpose,  however,  he  would  be 
regarded  as  particcps  criminis.  Irwin  v.  Williar,  110  U.  S.  499; 
Harvey  v.  Merrill,  150  Mass.  1.  But  see  Winchester  v.  Nutter,  52 
N.  H.  507,  where  the  mere  knowledge  of  a  third  person,  who  was  not 
a  party  to  a  wagering  contract,  was  held  not  to  preclude  recovery. 
Force  was  given  to  the  fact  that  his  compensation,  as  in  the  case  of 
a  broker,  was  fixed  and  in  no  way  depended  upon  the  result  of  the 
wager.  The  argument  certainly  has  force,  but  other  courts  have 
not  gone  so  far. 

It  is  not  to  be  understood,  however,  that  there  is  anything  illegal  in 
speculation.  Where  a  purchase  and  actual  delivery  of  goods  are  in- 
tended, contracts  are  perfectly  valid.  A  contract  is  only  void  as-  a 
wager  when  the  parties  are  simply  betting  upon  the  rise  and  fall  of 
prices  in  the  market.  The  test  is  whether  an  actual  delivery  was 
originally  intended.  Irwin  v.  Williar.  (supra),  at  p.  508;  Wall  v.  Schnei- 
der, 59  Wis.  352.  See  also  cases  collected,  2  Parsons  on  Contracts 
(8th  ed.),  879,  note  1. 

46.  A.  employs  B.  as  his  attorney  to  collect  a  claim  by  suit 
and  agrees  to  give  him  one-half  of  the  net  sum   collected,  B. 
to  pay  costs  of  suit.     After  recovery  A.  sues  B.  for  the  entire 
amount  recovered.     Judgment  for  whom? 


122  QUESTIONS  AXD  AXSWEES. 

According  to  the  strict  rules  of  the  common  law  such  an  agree- 
ment would  be  considered  a  gambling  contract,  and  would  be  void 
for  champerty  and  maintenance,  both  the  providing  of  money  to 
prosecute  a  suit  and  the  contract  to  act  as  attorney  upon  a  contin- 
gent fee  being  looked  upon  with  great  disfavor.  In  some  States,  as 
Massachusetts,  the  strictness  of  the  old  rules  still  prevails.  Ackert 
v.  Barker,  131  Mass.  436.  In  most  States,  however,  the  courts 
have  greatly  modified  the  restrictions,  especially  in  regard  to 
champerty;  and  in  California,  Delaware,  Michigan,  Nebraska  and 
New  Jersey,  champertv  and  maintenance  are  not  judicially  recog- 
nized. 5  Am.  &  Eng!  Ency.  (2d  ed.),  823,  824.  In  New  York 
also,  they  receive  practically  no  recognition.  Browne  v.  West,  9 
N.  Y.  App.  Div.  135. 


I.  IN  GENERAL. 
a.    Nature. 

1.  Define  a  corporation  and  distinguish  an  ordinary  'busi- 
ness corporation  from  other  kinds. 

Chief  Justice  Marshall's  definition  in  the  Dartmouth  College 
case  is,  in  part,  "  an  artificial  being,  invisible,  intangible  and  exist- 
ing only  in  contemplation  of  law."  This  and  similar  expressions 
are  frequently  employed  in  describing  a  corporation;  but  it  should 
be  kept  in  mind  that  in  fact  a  corporation  is  not  a  being  separable 
from  its  members.  It  is  really  a  collection  of  individuals,  author- 
ized by  law  to  act  in  certain  respects  as  one  person.  1  Morawetz 
on  Corporations,  §  1;  1  Kyd  on  Corporations,  §  13;  1  Thomp- 
son on  Corporations,  §§  1,  2. 

Corporations  are  either  public  or  private.  The  latter,  as  dis- 
tinguished from  the  former,  are  based  on  the  voluntary  associa- 
tion of  the  members,  while  the  former  are  governmental  establish- 
ments with  no  contractual  relation  between  those  who  compose 
them. 

Again,  corporations  are  aggregate,  composed  of  several  members, 
or  sole,  consisting  of  a  single  person. 

Private  corporations  are  subdivided  into  eleemosynary,  ecclesias- 
tical, and  civil. 

The  ordinary  business  corporation,  e.  g.,  for  transportation, 
manufacturing  or  newspaper  purposes,  is  a  private,  civil  corpora- 
tion, and  it  is  with  such  that  this  section  chiefly  deals.  See  1  Mora- 
wetz on  Corporations,  §§  2-5,  and  authorities  cited. 

As  part  of  its  essential  characteristic  of  collective  action,  a  corpora- 
tion has  a  distinct  name,  the  capacity  to  sue  and  be  sued,  and  generally 
a  common  seal.  As  a  rule,  there  is  perpetual  succession  among  its 
members,  by  transfer  of  the  shares  of  its  capital  stock  or  otherwise, 
but  this  is  not  a  necessary  incident;  and  the  exemption  from  individual 
liability  for  debts,  while  generally  prevalent,  is  by  no  means  in- 
dispensable to  corporate  existence.  Liverpool,  etc.  v.  Massachusetts,  77 
U.  S.  5G6;  Warner  v.  Beers,  22  Wend.  103,  per  Senator  Verplanck. 

2.  Distinguish  between  a  private  corporation  and  a  part- 
nership? 

Morawetz  points  out  the  differences  as  follows: 
1.  While  both  are  formed  by  the  mutual  agreement  of  those 
ivho  compose  them,  the  partnership  relation  may  be  established  by 

123 


124  QUESTIONS  AND  ANSWERS. 

any  persons,  at  any  time,  and  is  dependent  only  on  the  law  of 
contract  and  agency,  but  a  corporation  cannot  lawfully  be  formed 
without  the  authority  of  the  legislature.  It  has  been  regarded  as 
against  public  policy  for  individuals  to  act  as  a  corporation,  and 
the  privilege  can  only  be  enjoyed  by  special  permission  from  the 
legislative  body. 

2.  At  law,  the  members  of  a  firm  are  always  treated  as  individ- 
uals; the  firm,  as  such,  is  not  recognized.     A  corporation,  on  the 
other  hand,  is  considered  as  one  person,  and  its  constituent  parts 
are  disregarded.     It  can  be  sued  by  one  of  its  own  members. 

3.  Each  partner  is  liable  for  partnership  debts  to  the  full  extent 
of  his  possessions,  but  the  members  of  a  corporation  are  ordinarily 
not  liable  to  its  creditors  at  all. 

4.  Partnership  is  a  relation  of  special  confidence  and  personal 
trust,  and  the  act  or  contract  of  each  partner  is  the  act  or  contract 
of  all.     In  a  corporation  the  business  is  managed  by  agents,  se- 
lected by  a  majority  vote,  and  the  personal  element  is  very  small. 
Any  stockholder  can  transfer  his  shares  and  his  rights  to  anyone 
he  may  choose.     1  Morawetz  on  Corporations,  §  7. 


3.  A.  and  B.  own  all  the  stock  of  the  X.  corporation,  and 

in  their  own  names,,  execute  a  deed  of  real  estate  belonging  to  it. 
Does  the  title  pass? 

No.  The  title  cannot  be  at  the  same  time  in  the  corporation  and 
in  the  individual  members.  As  a  practical  matter,  moreover,  to 
recognize  such  a  deed  as  valid,  would  render  titles  to  land  highly 
uncertain.  Wheelock  v.  Moulton,  15  Vt.  519;  Button  v.  Hoffman. 
61  Wis.  20. 

4.  Is  a  corporation  a  "  citizen  "  of  the  State  under  the  laws 
of  which  it  was  organized  so  that  it  has  the  protection  of  the 
clause  of  the  Constitution  declaring  that  the  citizens  of  each 
State  shall  he  entitled  to  all  the  privileges  and  immunities  of 
citizens  of  the  several  States? 

It  is  not.  The  term  only  applies  to  natural  persons,  owing 
allegiance  to  their  respective  States.  It  does  not  include  artificial 
persons,  who  have  only  certain  restricted  powers  and  attributes. 
Moreover,  the  right  to  act  as  a  corporation  is  a  special  privilege 
conferred,  and  can  have  no-  operation  outside  the  jurisdiction  of 
the  legislative  body  which  grants  it.  Each  State  can  entirely  ex- 
clude foreign  corporations  or  admit  them  on  such  terms  as  it  sees 
fit.  Paul  v.  Virginia,  8  Wall.  168;  Christian  Union  v.  Yount,  101 
U.  S.  352. 

b..   Creation. 

5.  How  are  corporations  created? 

Almost  all  the  States  have  a  general  law,  under  which  individ- 
uals, by  complying  with  the  formalities  prescribed,  may  organize 


CORPORATIONS.  125 

a  corporation,  thus  practically  doing  away  with,  the  common-law 
prohibition.  In  some  States,  however,  it  is  still  necessary  to  se- 
cure a  special  charter  in  each  case,  while  in  others  special  charters 
are  absolutely  prohibited  by  their  Constitutions. 

The  charter  or  act  of  the  legislature  does  not  of  itself  create  the 
corporation.  It  is  a  grant  of  a  right  to  form  a  corporate  body,  and 
cannot  take  effect  without  the  consent  and  acceptance  of  the  cor- 
porators. This  is  generally  easy  to  find  in  action  taken  by  them 
under  the  terms  of  the  charter,  and  may  be  inferred  from  an  appli- 
cation for  incorporation.  1  Morawetz  on  Corporations,  §§  21-24; 
State  v.  Dawson,  16  Ind.  40. 

6.  Suppose  several  men  meet  and  attempt,  in  good  faith,  to 
crganize  a  corporation  in  accordance  with  a  general  incorpora- 
tion law,  but  do  not  strictly  comply  with  its  terms;  e.  g.,  they 
file  a  certificate  which  fails  to  state  the  performance  of  certain 
acts  required  by  the  statute.     They  then  proceed  to  act  as  a 
corporation.     In  a  suit  against  a  subscriber  for  the  amount  of 
his  subscription  can  he  show,  as  a  defense,  the  defects  in  the 
plaintiff's  organization? 

No.  This  organization  is  what  is  known  as  a  de  facto  corpora- 
lion,  and  it  is  well  settled  that  no  one  except  the  State  can  ques- 
tion its  corporate  existence.  To  constitute  such  a  corporation,  two 
things  must  be  shown:  (1)  a  charter,  or  a  general  incorporation  law; 
(2)  a  user  of  the  rights  claimed  to  be  conferred  by  it.  If 
a  bona  fide  attempt  to  organize  according  to  the  statutory  pro- 
visions can  be  shown,  very  slight  evidence  of  user  will  be  suffi- 
cient to  prove  existence  as  a  de  facto  corporation.  Meth.  Church 
v.  Pickett,  19  N.  Y.  482;  R.  R.  Co.  v.  Caxy,  26  id.  75. 

If,  however,  the  company  not  only  violates  the  common-law  prohibi- 
tion against  acting  as  a  corporation  without  authority  of  law,  but  Is 
also  illegal  because  its  dealings  are  in  violation  of  some  principle  of 
morality  or  of  public  policy,  the  contract  of  the  subscriber  would  be 
unenforceable  on  the  latter  ground.  2  Morawetz  on  Corporations,  §  758, 
and  cases. 

So,  again,  where  a  subscriber  signs  articles  agreeing  to  the  organiza- 
tion of  a  company,  "  as  therein  stated,"  it  must  be  so  organized  or  he  is 
not  bound.  Ind.  Co.  v.  Herkimer,  46  Ind.  142. 

7.  A.  "borrows  money  of  a  de  facto  corporation  and  gives  his 
note.     When  sued  on  the  note,  he  attempts  to  set  up  as  a  defense 
the  lack  of  legal  incorporation,  but  the  court  refuses  to  allow 
•ii.     What  is  the  ground  of  the  decision? 

It  is  frequently  said  that  the  recognition  of  dc  facto  corpora- 
tions as  legal  rests  on  an  estoppel  (Slocum  v.  Providence,  etc., 


126  QUESTIONS  AND  ANSWERS. 

10  R.  I.  112);  but  while  this  is  plausible  when  brought  forward  in  a 
suit  against  the  company,  the  reason  is  not  broad  enough  to  cover 
all  the  cases.  In  the  case  suggested,  it  would  be  absurd  to  say  that 
A.  has  misled  the  company  as  to  its  own  organization.  In  reality 
there  is  no  estoppel  about  it. 

The  true  ground  of  this  recognition  of  a  de  facto  corporation, 
which  practically  puts  it  on  the  same  footing  as  a  perfectly  organ- 
ized de  jure  corporation,  is  public  policy.  The  corporation  actu- 
ally exists,  though  without  authority  of  law.  It  would  be  a  harsh 
and  in  many  cases  an  absolutely  unnecessary  requirement  to  com- 
pel all  corporations  to  be  ready,  at  any  length  of  time  after  their 
start,  to  prove  their  organization.  Moreover,  it  is  only  by  a  rule  of 
public  policy  that  the  corporation  is  not  legal,  and,  on  the  same 
broad  ground,  it  is  plain  that  the  ends  of  justice  will  be  best  served 
by  treating  as  facts  what  all  the  parties  have  relied  upon  as  such 
in  their  mutual  dealings.  2  Morawetz  on  Corporations,  §§  692, 
750;  Soc.  Perun  v.  Cleveland,  43  Ohio  St.  481  (with  a  full  discus- 
sion of  the  subject);  Swartwout  v.  R.  R.  Co.,  24  Mich.  390. 

8.  //  a  de  facto  corporation  refuses  to  perform  its  contract 
obligations  can  the  creditor  ignore  the  corporation  and  sue  the 
members  as  partners? 

By  the  weight  of  authority,  this  cannot  be  done.  Neither  side 
intended  a  contract  on  those  terms.  The  members  did  not  so  con- 
tract between  themselves,  and  the  third  party  did  not  contemplate 
such  an  advantage.  The  court  has  no  right  to  create  a  new  con- 
tract for  them.  2  Morawetz  on  Corporations,  §  748;  Snider  Sons' 
Co.  v.  Troy,  91  Ala.  224;  s.  c.,  24  Am.  St.  Rep.  887  (naming  the 
States  on  each  side  of  the  question);  Stout  v.  Zulick,  48  N.  J.  Law, 
599. 

There  is,  however,  some  opposing  authority.  See  Cook  on  Stock 
and  Stockholders,  §  233;  Bigelow  v.  Gregory,  73  111.  197. 

The  members  may,  of  course,  so  act  as  to  make  themselves  liable 
in  tort;  and  if  they  are  in  fact  partners,  a  different  case  is  presented. 
2  Morawetz  on  Corporations,  §  749;  National,  etc.  v.  Landon,  45  N, 
Y.  410. 

c.    Construction  of  Charters. 

9.  What  general  rule  of  construction  is  applied  to  ascertain 
the  limit  of  the  powers  granted  a  corporation  by  its  charter? 

The  charter  expresses  the  contract  of  the  corporators  between 
themselves,  and  also  acts  as  the  grant  from  the  State  to  them  of 
the  right  to  act  as  a  corporation,  and  it  generally  states  only  the 
main  objects  of  the  undertaking.  The  American  rule  is  that  cor- 
porations have  the  powers  that  are  expressly  set  forth,  and  such 
others  as  are  incidental  or  necessary  to  carry  into  effect  the  pur- 
poses for  which  they  were  established.  The  construction  of  the 


CORPORATIONS.  127 

charter,  is  to  be  neither  strict  nor  liberal,  but  simply  according  to 
the  fair  natural  import  of  the  language  used.  1  Morawetz  on  Cor- 
porations, §§  316,  '618,  320;  Downing  v.  Mt.  Washington  Road  Co., 
4U  X.  H.  230. 

The  English  rule  is  that  a  corporation  has  all  powers  except 
those  which  are  prohibited,  but  inasmuch  as  whatever  is  not  ex- 
pressly or  impliedly  granted  is  impliedly  prohibited,  the  result  is 
the  same.  1  Morawetz  on  Corporations,  §  317,  and  note. 

10.  The  State  grants  a  charter  to  the  X.  corporation  to  build 
a  toll-bridge  across  the  Charles  river,  and  the  bridge  is  accord- 
ingly constructed.     Later  it  grants  a  charter  to  the  Y.  corpora- 
tion to  build  a-  toll-bridge  a  few  rods  from  the  location  of  the 
existing  one.     Can  the  X.  corporation  prevent  the  building  of 
the  new  bridge? 

It  cannot.  A  charter  which  grants  privileges  that  concern  the 
public  or  that  are  in  derogation  of  common  right,  such  as  the  one 
held  by  the  X.  corporation,  or  a  grant  of  exemption  from  taxation, 
is  to  be  strictly  construed  against  the  corporation.  "  Every  reason- 
able doubt  is  to  be  resolved  adversely.  Nothing  is  to  be  taken  as 
conceded  but  what  is  given  in  unmistakable  terms  or  by  an  im- 
plication equally  clear.  *  *  •*  This  doctrine  is  vital  to  the 
public  welfare."  Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.  659, 
666;  Charles  River  Bridge  v.  Warren  Bridge,  11  Pet.  420. 

But  if  an  exclusive  right  is  expressly  granted,  it  is,  in  general, 
valid,  as,  for  instance,  a  right  to  operate  a  toll-bridge,  with  a  pro- 
vision in  the  charter,  declaring  that  no  other  bridge  shall  be  built 
for  a  distance  of  two  miles  in  either  direction.  The  Binghamton 

Bridge,  3  Wall.  71. 

d.    General  Powers. 

11.  How  can  you  tell  whether  a  corporation  has  authority 
to  issue  negotiable  paper? 

It  can  lawfully  do  so,  when  necessary  for  the  purposes  for 
which  it  was  organized,  i.  e.,  when  such  a  proceeding  would  be,  in 
the  ordinary  course  of  business,  an  appropriate  and  usual  one  if 
the  corporation  were  an  individual.  The  liability  of  the  corpora- 
tion depends  on  principles  of  agency,  and  if  the  giving  of  a  note 
would  under  ordinary  circumstances  be  an  appropriate  means  of 
carrying  out  the  chartered  purposes  of  the  corporation,  the  payee 
can  enforce  it,  even  if  in  the  particular  case  the  transaction  was 
for  an  unauthorized  object.  The  payee,  however,  according  to 
fundamental  rules  of  agency,  cannot  recover,  if  he  has  notice  that 
the  act  is  unauthorized.  1  Morawetz  on  Corporations,  §§  350, 
351: 1'nion  Bank  v.  Jacobs.  6  Humph.  (Tenn.)  515;  Moss  v..Averell, 
10  X.  Y.  449,  457.  460;  National  Park  Bank  v.  German,  etc.,  Co., 
116  id.  281.  And  see  Ques.  25,  infra. 


128  QUESTIONS  AND  ANSWEBS. 

12.  A  railroad  company  attempted  to  mortgage  its  property, 
including  franchise,  roadbed  and  all  oilier  property,  to  secure 
certain  bonds  issued  to  pay  for  construction.    It  had  no  express 
authority  to  do  so.    Is  the  mortgage  valid? 

No.  It  is  well  settled,  that  a  corporation  cannot  legally  mort- 
gage, lease  or  sell  its  franchise,  or  any  of  its  property  which  is 
essential  to  continue  operations  under  the  franchise,  without  legis- 
lative permission,  stated  expressly  or  by  strong  implication.  One 
reason  for  this  is  that  the  legislature  is  the  only  body  which  can 
grant  to  individuals  the  privilege  of  acting  as  a  corporation;  a  cor- 
jiorati^n.  therefore,  cnnnot  be  allowed  to  transfer  HP  franchise  to 
A.,  B.  and  C.,  for  it  would  then  be  the  members  of  the  corporation 
who  would  confer  corporate  rights  and  privileges. 

The  property  of  ordinary  trading  corporations  can  generally  be 
sold,  because  it  is  not  as  a  rule  essential  to  their  continued  exist- 
ence and  activity;  a  new  location  can  be  secured.  Leggett  v. 
N.  J.,  etc.,  Co.,  1  N.  J.  Eq.  541;  s.  c.,  23  Am.  Dec.  728,  and  note. 
But  the  property  of  a  railroad,  or  a  gas  or  water  company,  is 
essential  to  the  performance  of  its  public  duties.  "  The  discharge 
of  those  duties  is  the  leading  object  of  their  creation."  Other 
reasons  given  for  the  rule  are,  the  tendency  to  a  monopoly  by  a 
union  of  corporations,  the  personal  trust  put  in  the  original  cor- 
porators by  the  legislature,  and  the  rule  of  strict  construction  of 
charters  concerning  the  public  interest. 

Leases,  mortgages  and  absolute  transfers  are  all  invalid  for  the 
same  reason  for  they  differ  only  in  the  degree  by  which  they 
hamper  or  prevent  the  due  performance  of  the  public  functions 
undertaken.  Commonwealth  v.  Smith,  10  Allen,  448;  Brunswick, 
etc.,  Co.  v.  United,  etc.,  Co.,  85  Me.  532,  and  especially  the 
note  to  this  case,  35  Am.  St.  Rep.  390,  397,  402,  405. 

13.  Can  a  corporation  buy  its  own  stock? 

It  has  been  held  that  there  is  no  objection  to  such  a  "  purchase," 
that  no  one  is  injured  provided  the  corporation  is  solvent,  and 
that  the  corporation  can  hold  it  for  sale  like  other  marketable  prop- 
erty. City  Bank  v.  Bruce,  17  N.  Y.  507;  Iowa  Lumber  Co.  v. 
Foster,  49  Iowa,  25;  R.  R.  Co.  v.  Marseilles,  84  111.  145,  and  643. 

But  these  decisions  have  been  strongly  opposed.  The  sale  is 
virtually  a  withdrawal  of  the  stockholder  and  a  certain  amount 
of  capital  stock  from  the  enterprise.  It  deceives  the  public,  who 
are  dealing  with  the  corporation,  as  to  the  real  amount  of  money 
invested,  and  it  injures  the'  remaining  stockholders  by  weakening 
the  treasury  and  hampering  the  operations  of  the  concern.  See 
1  Morawetz  on  Corporations,  §§  112-114;  Coppin  v.  Greenless  Co., 
38  Ohio  St.  275;  Percy  v.  Millaudcn,  3  La.  (0.  S.)  570;  Crandall 
v.  Lincoln,  52  Conn.  73, 


CORPORATIONS.  129 

e.      Dissolution. 

14.  Are  corporate  rights  lost  by  nonuser? 

A  mere  nonuser  or  misuser  of  corporate  rights  does  not 
of  itself  work  a  forfeiture  of  those  rights,  or  of  the 
franchise,  unless  they  are  expressly  made  conditional  upon 
their  due  exercise.  The  violation  of  duty  may  be  a  good 
reason  for  forfeiture  and  dissolution,  at  the  suit  of  the  State, 
but  it  cannot  be  taken  advantage  of,  either  collaterally  or  directly, 
bv  an  individual,  for  the  only  parties  to  the  compact  created  by 
the  act  of  incorporation  are  the  corporation  and  the  government. 
However  great  the  breach  may  be,  therefore,  an  individual  can- 
not step  in;  for  the  State  may  waive  it.  Heard  v.  Talbot,  7  Gray, 
113;  Commonwealth  v.  Ins.  Co.,  5  Mass.  230;  State  v.  Turnpike, 
15  N.  H.  162. 

It  has  even  been  held,  that  provisions  in  charters  that  in  a  cer- 
tain event,  "  the  corporate  powers  shall  cease,"  or,  the  charter 
"  shall  be  void,"  mean  only  that  they  shall  then  be  subject  to 
forfeiture  at  the  suit  of  the  State.  Briggs  v.  Cape  Cod,  etc.,  Co., 
137  Mass.  71;  Sewall  Falls  Bridge  Co.  v.  Fisk,  23  N.  H.  171.  But 
see  2  Morawetz  on  Corporations,  §  1006. 

15.  In  what  way  does  the  existence  of  a  corporation  come  to 
an  end? 

1.  By  direct  action  by  the  legislature,  if  no  constitutional  priv- 
ilege be  violated. 

2.  By  expiration  of  the  charter,  as  where  there  is  a  set  time  lim- 
ited for  the  duration  of  the  corporation. 

3.  By  agreement  to  dissolve   and  a  surrender,  with  the  State's 
consent. 

4.  By  judgment  of  dissolution  pronounced  in  a  judicial  pro- 
ceeding. 

On  the  whole  subject,  see  Boston,  etc.  v.  Langdon,  24  Pick.  49; 
2  Morawetz  on  Corporations,  §§  1004-1008. 

Death  of  all  the  members  does  not  dissolve  a  corporation,  ex- 
cept in  a  case  where  new  members  must  be  elected  by  vote  of  the 
old  ones.  2  Morawetz  on  Corporations,  §  1009. 

The  proceeding  by  the  attorney-general,  on  behalf  of  the  State,  Is 
generally  by  a  writ  in  the  nature  of  <ino  icarranto.  A  bill  in  equity  is 
not  a  proper  proceeding;  for  a  court  of  equity  has  ho  right  to  act  when 
the  remedy  at  law  is  adequate.  There  are  two  cases,  however,  where, 
such  a  bill  can  be  used,  viz.,  to  prevent  or  stop  a  public  nuisance,  and 
to  enforce  a  charitable  trust.  Hardon  v.  Newton.  14  Blatchf.  376;  At- 
torney-General v.  Ice  Co..  104  Mass.  239;  Attorney-General  v.  Aqueduct 
Corporation,  133  Mass.  361;  and  see»a  long  note,  8  Am.  St.  Kep.  179. 

9 


130  QUESTIONS  AND  ANSWERS. 

f.   Torts  and  Crimes. 

16.  How  can  a  corporation  be  liable  for  a  tort? 

The  argument  was  made  in  behalf  of  corporations  that  they 
could  not  be  held  for  torts.  It  was  said  that  if  the  act  was  within 
the  authority  of  the  corporation  by  charter,  it  cpuld  not  be  un- 
lawful; and  if  it  was  outside  that  authority,  the  corporation  could 
not  be  held  because  a  corporation  only  has  the  rights  and  powers 
bestowed  by  the  legislature  upon  it. 

But  this  reasoning  is  fallacious  in  not  considering  the  plain 
facts,  and  it  has  been  everywhere  repudiated.  If  a  corporation 
is  chartered  to  build  a  railroad,  and  does  so  by  its  agents,  there 
is  no  reason  why  it  should  not  be  made  liable  by  acts  o-f  those 
agents  exactly  as  an  individual  is.  The  law  is  that  whenever  a 
corporation  acts  by  an  agent,  it  can  be  bound  in  any  way  that  an 
agent  can  bind  a  principal.  Chestnut  Hill,  etc.  v.  Rutter,  4  S.  &  E. 
(Penn.)  6,  (trespass  on  the  case);  R.  R.  Co.  v.  Quigley,  21  How.  202 
(libel);  Green  v.  Omnibus  Co.,  7  C.  B.  (N.  S.)  290  (vexatious  inter- 
ference with  business). 

17.  If  a  railroad  corporation  enters  upon  the  publication  of 
a  newspaper  can  it  be  held  for  a  tort  committed  by  one  of  its 
employees  in  that  enterprise? 

Here  again,  the  question  is  one  of  agency.  Such  a  business  is 
beyond  the  chartered  authority  of  the  railroad  company.  The 
majority  of  the  stockholders  cannot  drag  the  others  into  it  against 
their  will,  and  hence  they  have  no  authority  to  appoint  agents  to 
conduct  it.  If,  however,  there  has  been  a  ratification  of  the  under- 
taking by  all  the  members  of  the  corporation,  the  corporation  is 
then  bound  as  principal  in  the  ordinary  way.  Central,  etc.,  Co. 
v.  Smith,  76  Ala.  572;  s.  c.,  52  Am.  Rep.  353,  and  note  citing, 
at  length,  47  N.  J.  Law,  137,  and  40  N.  Y.  168. 

18.  For  what  can  a  corporation  be  criminally  charged? 

It  can  be  indicted  for  any  crime  for  which  a  criminal  intention 
is  not  requisite.*  Such  crimes  can  be  committed  by  agents. 
Hence,  corporations  are  indictable  for  a  public  nuisance,  whether 
the  act  be  "  misfeasance  "  or  "  nonfeasance  "  (Commonwealth  v. 
Bridge  Co.,  2  Gray,  339;  State  v.  Morris,  etc.,  R.  R.  Co,,  23  N.  J. 
Law,  360);  for  omitting  a  statutory  duty  (Commonwealth  v.  Central 
Bridge  Co.,  12  Cu~h.  242),  or  "  for  doing  any  act,  which  is  made 
indictable  without  regard  to  the  intention  of  the  offender."  2 
Morawetz  on  Corporations,  §  733,  and  cases  supra. 

*Morawet2,  §  732.  says  that  if  all  the  corporators  unite  in  a  criminal  intent  it  re- 
main1) only  the  several  intent  of  the  several  members,  and  is  not  one  intent  of  the  com- 
pany. But  if  all  the  corporators,  when  gathered  in  a  corporate  meeting  and  meaning  to 
act  in  a  corporate  capacity  can  produce  by  united,  concurrent  effort  an  intent  which 
binds  the  corporation  and  not  th»  individuals,  such  as  an  intention  to  accept  a  contract, 
why  can  they  not  by  a  similar  effort  create  a  corporate  intent  of  an  evil  character,  such 
as  to  rob  or  murder  ? 


CORPORATIONS.  131 

II.  LEGISLATIVE  CONTROL. 
a.     Charter  as  a  Contract  Between  the  State  and  the  Corporation. 

19.  What  did  the  case  of  Dartmouth  College  v.  Woodward 
decide? 

It  held  that  the  charter  of  incorporation  of  the  college  was  a 
contract  within  the  meaning  of  the  clause  in  the  Federal  Consti- 
tution, prohibiting  any  State  from  passing  a  law  impairing  the 
obligation  of  contracts.  The  court  assumed  this  conclusion  as 
obvious,  so  they  did  not  give  a  full  statement  of  their  reasons  for 
so  deciding,  but  it  was  held,  that  the  compact  was  between  the 
donors  and  the  Crown,  and  that  the  college  represents  the  former, 
is  the  assignee  of  their  rights,  and  can  complain  of  a  breach  of 
the  contract;  that  the  Crown  received  full  compensation  for  grant- 
ing the  charter  in  the  gifts  for  public  education,  which  were  condi- 
tional on  its  being  granted,  and  that  "  there  can  be  no  reason  for 
implying  in  a  charter  given  for  a  valuable  consideration,  a  power 
[of  future  control],  which  is  not  only  not  expressed,  but  is  in  direct 
contradiction  to  its,  express  stipulations." 

The  impairment  of  the  contract  (which  the  court  also  found  to 
be  beyond  argument)  consisted  in  raising  the  number  of  trustees 
from  twelve  to  twenty-one,  the  appointment  of  the  additional 
members  being  given  to  the  Executive  of  the  State,  and  in  creat- 
ing a  board  of  overseers,  also  appointed  by  the  Executive,  with 
power  to  control  the  most  important  acts  of  the  trustees.  Dart- 
mouth College  v.  Woodward,  4  Wheat.  517*  (1818),  (reversing  the 
State  court). 

One  effect  of  the  decision  was  that  all  the  States  have  since 
inserted  in  their  Constitutions  a  provision  that  all  charters  of 
corporations  shall  be  subject  to  repeal,  amendment  or  alteration. 

20.  A  legislature  passes  a  law  requiring  all  railroads  to  build 
cattle-guards  at  highway  crossings,  and  to  pay  damages  arising 
from  any  neglect  to  do  so.     The  A.  &  B.  Railroad  Company  was 
already  in  existence,  and  there  was  no  power  reserved  by  the 
legislature  to  amend,  alter  or  repeal  its  charter.     Does  that  com- 
pany, therefore,  escape  the  operation  of  the  law  in  question? 

Clearly  not.  Even  granting  that  the  charter  is  an  irrepealable, 
unalterable  compact,  it  does  not  follow  that  corporations  are 
thereby  exempt  from  the  police  regulations  that  are  imposed  by 
law.  They  are  on  the  same  footing  as  other  persons.  For  the  sake 
of  protecting  the  lives,  health  and  morals  of  the  public,  the  legis- 
lature can  impose  restraints,  in  numberless  particulars,  upon  the 
conduct  of  their  business,  especially  when  it  is  of  a  dangerous  char- 

*  The  validity  of  the  decision  cannot  b«  here  considered.    Pee  articles  discussing  it  in  8 
/on.  Law  Rev.',  189,  and  6  Harv.  Law  Rev.,  161,218  (by  the  late  Chief  Justice  Doe). 


132  QUESTIONS  AND  ANSWERS. 

acter  like  a  railroad.  If  the  legislature  can  bargain  away  its  police 
powers  at  all,  it  certainly  cannot  do  so  without  express  words. 
Thorpe  v.  R.  R.  Co.,  27  Vt.  140;  Beer  Co.  v.  Mass.,  97  U.  S.  25. 

b.    Control  by  Legislature  when  Power  is  Reserved  to  Amend,  Alter 
.  or  Repeal  the  Charter. 

21.  When  the  legislature  repeals  the  charter  of  a  corpora- 
tion under  a  reserved  power  to  do  so,  what  property  rights  remain 
and  to  whom  do  they  belong? 

It  seems  plain  that  the  property  not  dependent  on  the  charter, 
such  as  personal  property,  corporeal  real  estate,  choses  in  action, 
or- funds  on  hand,  title  to  which  has  vested,  belongs  to  creditors, 
and  the  surplus,  if  any,  to  the  stockholders,  whose  money  has  been 
paid  for  it.  The  death  of  a  corporation  leaves  these  things  in 
much  the  same  situation  as  the  death  of  a  natural  person  leaves  sim- 
ilar property.  Mumma  v.  Potomac  Co.,  8  Pet.  281;  Greenwood  v. 
Freight  Co.,  105  U.  S.  13;  Bacon  v.  Robertson,  18  How.  480. 

It  seems  equally  clear  that  the  members  of  the  dissolved  corpora- 
tion have  lost  the  rights  "  dependent  solely  on  the  grant  of  the 
charter,  and  which  could  not  be  exercised  by  unincorporated  private 
persons,  under  the  general  laws  of  the  State."  An  illustration  of 
such  a  right  is  the  privilege  of  street  railroads  or  gas  companies 
to  occupy  city  streets.  These  rights  are  gone,  because  the  charter 
was  conditional.  It  was  accepted  with  the  definite  possibility  of 
a  repeal  in  view.  2  Morawetz  on  Corporations,  §§  1093,  1094; 
Greenwood  v.  Freight  Co.,  supra. 

But  if,  under  an  authority  to  mortgage,  the  corporation  has  mort- 
gaged its  franchise,  i.  e.,  the  right  to  operate  a  railroad  or  act  other- 
wise as  a  corporation,  in  what  condition  does  a  repeal  leave  the 
mortgagees?  Do  these  rights,  frequently  of  immense  value,  dis- 
appear in  this  case  also,  leaving  the  mortgagees  without  their  se- 
curity? In  People  v.  O'Brien,  111  N.  Y.  1,  and  2  Morawetz  on 
Corporations,  §  1102,  it  is  strongly  urged  that  these  third  parties 
obtain  rights  which  are  unaffected  by  the  repeal.  But  it  is  diffi- 
cult to  see  why  the  parties  have  not  contracted  in  full  view  of  the 
power  to  repeal,  and  with  the  knowledge  that  the  power  may  at 
any  time  be  exercised.  See  9  Am.  Law  Rev.  65,  70.. 

22.  A  corporation  was  organized  and  chartered  to  build  a 
railroad  five  miles  long  through  a  level  country  from  X.  to  Y. 
The  legislature  passed  an  act  altering  the  charter  so  that  the  cor- 
poration was  empowered  to  build  twelve  miles  beyond  Y.  through 
an  uneven,  hilly  country  to  Z.      If  the  company  prepares  to 
build  this  extension  can  a  dissenting  stockholder  get  an  injunc- 
tion to  stop  it? 


COEPORATIONS.  133 

Courts  of  high  authority  have  differed  widely  on  this  question. 
On  the  one  hand  is  the  case)  of  Durfee  v.  R.  R.  Co.,  5  Allen,  230. 
This  holds  that  an  extension  of  a  railroad  and  union  with  another 
company,  when  the  alteration  is  made  by  the  legislature,  and  ac- 
cepted by  the  majority  of  the  stockholders,  cannot  be  objected  to. 
The  court  say  that  unless  this  is  so  the  reservation  of  a  right  to 
alter  is  nugatory,  for  even  without  it  a  change  could  be  made,  if 
the  legislature  and  the  whole  body  of  corporators  agreed  to  it;  and 
also  that  the  stockholders  formed  the  company  with  the  distinct 
understanding  that  the  enterprise  might  be  altered  in  this  very  way. 

The  plaintiff  urged  with  much  force  that  it  was  begging  the 
question  to  say  that  they  agreed  to  this  material  change,  unless 
the  court  was  prepared  to  say  that  an  alteration  could  be  made 
from  a  railroad  to  a  soap  factory  or  anything  else  of  a  wholly 
different  character  from  the  original  purpose;  but  this  conclusion 
the  Massachusetts  court  declined  to  admit. 

On  the  other  hand  we  have  the  case  of  Zabriskie  v.  R.  R.  Co., 
18  N.  J.  Eq.  178,  where  the  facts  were  those  suggested  in  the 
above  question.  The  court  said  that  neither  the  legislature,  nor  the 
majority,  nor  both  together,  could  make  a  change  of  the  kind  pro- 
posed. Increase  of  power,  even  if  it  is  of  the  same  kind  as  that  origi- 
nally granted,  is  not  an  unmixed  blessing,  and  may  change  the 
enterprise  as  much  as  an  alteration  to  something  of  a  different 
character.  "  Power  to  alter  a  mansion-house  would  never  be  con- 
strued to  mean  a  power  to  tear  down  all  but  the  back  kitchen  and 
front  piazza,  and  build  one  three  times  as  large  in  its  place.  In 
anything  altered,  something  must  be  preserved  to  keep  up  its 
identity;  and  a  matter  of  the  same  kind,  wholly  or  chiefly  new, 
substituted  for  another,  is  not  an  alteration;  it  is  a  change." 

As  instances  of  legitimate  alterations,  statutes  relating  to  the 
right  to  take  land  by  condemnation,  the  amount  of  fare  to  be 
taken,  or  width  of  bridges  or  track,  are  suggested.  See  also  Meadow 
Dam  Co.  v.  Gray.  30  Me.  547;  Oldtown,  etc.,  Co.  v.  Veazie,  39  id. 
571;  Kenosha  R.  R.  Co.  v.  Marsh,  17  Wis.  13. 

In  accordance  with  Durfee  v.  R.  R.  Co.,  see  Buffalo,  etc.  v. 
Dudley,  14  N".  Y.  355,  representing,  probably,  the  weight  of  au- 
thority. Compare  Commonwealth  v.  Essex  Co.,  13  Gray,  239. 

III.  VALIDITY  OF  UNAUTHORIZED  CORPORATE  ACTS  (ULTRA 

VIRES). 

23.  Define  the  term  "  ultra  vires." 

It  is  used  to  express  many  different  ideas.  Sometimes  it  means 
an  act  which  is  beyond  the  chartered  authority  of  the  company  to 
do  under  any  circumstances;  sometimes  an  act  which  is  outside  that 
authority  when  performed  for  a  certain  purpose;  again,  an  act 
within  the  authority  granted  by  the  corporate  charter,  but  per- 
formed by  an  agent  without  authority,  and  so  on. 


134  QUESTIONS  AND  ANSWERS. 

According  to  Morawetz,  it  has  no  proper  use  with  reference  to 
private  corporations,  unless  used  in  the  first  sense  mentioned 
(i.  e.,  translating  "  vires  "  as  authority  rather  than  pcnvcr),  for 
his  view  is  that  any  body  of  men  have  the  power  to  act  in  a  cor- 
porate capacity,  whether  chartered  or  not.  If  they  have  no  charter, 
their  acts  are,  to  be  sure,  prohibited  by  the  common  law,  but  they 
are  collective,  corporate  acts,  nevertheless;  such  acts  are  facts;  and 
acts  done  after  an  incorporation,  but  outside  the  express  or  implied 
authority  of  the  charter,  are  facts  of  the  same  kind.  He,  therefore, 
regards  the  term  as  misleading,  except  as  applied  to  municipal 
corporations.  2  Morawetz  on  Corporations,  §§  648-651,  TOO;  Bis- 
sell  v.  Mich.,  etc.,  Co.,  22  N.  Y.  259. 

Other  authorities,  using  the  term  to  describe  acts  outside  the 
chartered  authority,  but  in  its  literal  sense  of  "  outside  the  powers  " 
of  the  corporation,  regard  that  meaning  as  satisfactory  and  truth- 
ful. They  say  a  corporation  is  a  creation  of  the  law,  endowed 
with  only  a  certain  number  of  attributes  and  powers.  The  theory 
is  that  since  it  has  only  those  qualities  which  are  conferred  upon 
it,  it  cannot  act  outside  the  line  so  drawn.  Angell  &  Ames  on  Cor- 
porations, §  256;  Green's  Brice's  Ultra  Vires,  pp.  33-35. 

24.  Suppose  a  common  case;  wlure  the  act  is  one  plainly 
outside  the  charter  authority  of  the  corporation,  and  can  be 
recognized  as  such  by  the  third  party  by  a  comparison  of  the 
terms  of  the  contract  with  the  charter  (of  which  all  are  obliged 
to  take  notice).  In  pursuance  of  a  unanimous  vote  of  the 
stockholders,  a  railroad  company  by  its  president  contracts  icifh 
one  X.  to  buy  a  thousand  grand  pianos,  and  the  goods  are  de- 
livered by  X.  and  accepted.  On  the  refusal  of  the  company  to 
pay  for  them,  what  remedy  has  X.? 

In  a  number  of  jurisdictions,  he  can  sue  on  the  contract  and 
recover  the  contract  price,  the  argument  being  as  follows: 

Two  principles  are  involved,  one  of  agency,  and  one  of  public 
policy.  The  whole  body  of  stockholders,  acting  in  their  corporate 
capacity,  have  made  the  president  of  the  company  their  agent  for 
a  particular  purpose,*  and  when  he  contracts  for  them  in  accord- 
ance with  his  actual  or  apparent  authority,  the  corporation  is 
bound,  exactly  as  any  principal  is  bound  by  the  acts  of  his  agent. 
(Ratification  also  by  the  entire  corporate  body  of  an  unauthorized 
contract  made  on  its  behalf  would  have  the  same  effect  as  ratifica- 
tion by  an  individual).  The  contract  thus  existing  as  a  matter 
of  fact,  the  next  question  is;  How  shall  it  be  treated?  Such  a 
contract  is  prohibited  by  the  common  law,  because  made  by  the 
corporation  without  legislative  authority.  But  "  the  effect  of  the 
prohibition  upon  the  contract,  therefore,  depends  wholly  upon  the 
requirements  of  the  public  policy,  pursuant  to  which  the  policy  was 

*For  the  effect  of  dissent  by  a  minority,  see  Ques.  28-30,  infra. 


CORPORATIONS.  135 

established."  2  Morawetz  on  Corporations,  §  689.  "When,  there- 
fore, as  in  the  case  suggested,  such  a  contract  has  been  per- 
formed by  either  one  of  the  parties,  and  there  is  no  express 
prohibition  against  it,  or  such  an  intrinsic  illegality  in 
its  subject-matter  or  object  as  would  render  a  similar 
contract  between  individuals  unenforceable  (see  2  Morawetz  on 
Corporations,  §§  654-660),  the  policy  of  the  law  is  best  served  by 
compelling  the  other  party  to  make  compensation  for  the  failure 
to  perform  on  his  part.  2  Morawetz  on  Corporations,  §§  618,  619, 
628,  632,  641,  642,  648-653,  689-699;  Whitney  Arms  Co.  v.  Bar- 
low, 63  X.  Y.  62:  State  Board,  etc.  v.  R.  R.  Co.,  47  Ind.  407. 

It  is  no  argument  against  this  view  to  say  that  the  common- 
law  prohibition  is  of  no  avail  if  such  contracts  are  to  be  recog- 
nized, because  the  rule  onl}r  applies  when  one  party  has  per- 
formed. So  long  as  the  contract  remains  executory,  either  side 
may  withdraw  without  liability.  2  Morawetz  on  Corporations, 
§  685;  Bradley  v.  Ballard,  55  111.  417. 

On  the  other  hand,  there  is  a  strong  array  of  cases  in  which 
a  different  conclusion  is  reached.  These  cases  hold  that  outside 
the  authority  granted  by  their  charter,  a  body  of  stockholders 
cannot  act  in  a  corporate  capacity.  That  is,  they  have  the  bundle  of 
powers  contained  in  the  charter,  and  no  more.  Any  attempt  to 
contract  or  act  outside  of  that  limited  field  is  illegal  and  void,  and 
no  performance  of  any  part  of  an  agreement  of  that  kind  can  make 
it  enforceable.  Davis  v.  Old  Colony  R,  R.  Co.,  131  Mass.  258; 
Central  Trans.  Co.  v.  Pullman  Co.,  139  U.  S.  24,  60,  61;  Ashbury 
Co.  v.  Riche,  L.  R.  7  H.  L.  653. 

Even  by  these  authorities,  however,  the  contract  is  not  treated 
like  contracts  which  are  illegal  in  the  usual  sense.  If  money  or 
property  has  been  voluntarily  received,  an  action  for  its  reason- 
able value  may  be  maintained,  either  by  or  against  the  corpora- 
tion, for  this  is  considered  to  be  in  disaffirmance  of  the  contract, 
and  independent  of  it.  White  V.  Bank,  22  Pick.  181;  Davis  v. 
R.  R.  Co.,  supra;  Northwestern,  etc.  v.  Shaw,  37  Wis.  655. 

Courts  holding  these  opposing  views  are,  nevertheless,  agreed  that 
where  a  corporation,  though  without  charter  authority,  makes  a  com- 
pleted purchase,  under  which  property  is  transferred  to  It  and  paid 
for,  the  grantor  cannot  afterwards  repudiate  the  transaction,  and  de- 
mand his  property  back;  nor  can  the  lack  of  authority  be  urged  against 
the  corporation  on  a  subsequent  sale  to  a  third  person,  as  a  ground  of 
a  refusal  by  the  latter  to  pay  for  the  property.  In  these  cases  it  lies 
with  the  State  alone  to  call  the  corporation  to  account.  L,eazure  v. 
Hillegas.  7  S.  &  R.  313;  Hough  v.  Land  Co.,  73  111.  23;  Rutland,  etc.,  Co. 
v.  Proctor,  29  Vt.  93. 

25.  Suppose  the  purchasing  agent  of  a  railroad  company  con- 
tracts with  X.  for  a  certain  amount  of  steel  rails.  They  are 


136  QUESTIONS  AND  ANSWERS. 

not  intended  to  be  used  for  purposes  of  construction,  but  are 
bought  for  speculation.  The  company  refuses  to  accept  them 
when  delivery  is  tendered  by  X.  Is  it  justified  in  so  doing? 

It  is  not.  This  is  as  complete  and  binding  a  contract  as  ever  was- 
made  and  the  decisions  are  believed  to  be  uniform  on  the  point, 
irrespective  of  the  divergent  views  concerning  contracts  outside  the 
charter  authority,  pointed  out  in  the  foregoing  question.  Such  a, 
case  is  not  to  be  regarded  as  of  that  class.  For  by  its  charter  the 
company  has  authority  to  buy  steel  rails  for  a  certain  purpose,  and 
X.  could  not  tell  from  the  face  of  the  transaction  that  the  object  was 
an  unauthorized  one.  If,  indeed,  by  an  examination  of  the  charter, 
he  would  have  known  that  the  proposed  dealings  were  beyond  the 
corporate  authority,  as,  for  example,  in  the  case  suggested  in  Ques- 
tion 24,  or  if  he  had  had  actual  notice  of  the  facts,  no  enforceable 
contract  would  have  been  formed.  Subject,  however,  to  this  quali- 
fication, the  corporation  is  bound  in  such  cases  to  the 
terms  of  the  contract  as  the  agent  makes  it,  and  specific  per- 
formance may  be  secured,  where  the  nature  of  the  contract  is. 
such  that  that  remedy  would  be  available  as  between  individuals. 
Eastern,  etc.,  Ry.  v.  Hawkes,  5  H.  L.  Gas.  331,  349;  Monument, 
etc.  v.  Globe  Works,  101  Mass.  57.  Cf.  Bissell  v.  Michigan,  etc.,  R. 
R.  Co.,  22  N.  Y.  259,  and  Ques.  11,  supra. 

It  should  be  added  that  on  principles  of  agency  the  liability 
exists  without  regard  to  the  consent  of  the  shareholders.  For 
after  they  have  embarked  upon  the  enterprise  and  appointed  agents 
to  act  in  carrying  it  on,  they  are  made  liable  by  the  latter,  if 
within  their  apparent  authority,  just  as  an  individual  is  sometimes- 
bound  by  acts  of  his  agent  contrary  to  his  express  orders.  2 
Morawetz  on  Corporations,  §§  577-581,  585-589. 

26.  A.  bequeathed  a  sum  of  money  to  Cornell  University, 
which  was  authorized  to  hold  only  a  certain  amount  of  property. 
To  take  the  sum  bequeathed  would  carry  the  funds  of  the  institu- 
tion beyond  the  limit,  but  the  surrogate  ordered  it  paid  over  by 
the  executor.  On  appeal  by  the  heirs-at-law,  what  is  the  proper 
decision  ? 

By  the  weight  of  authority,  the  appeal  should  be  sustained. 
It  is  held  that,  although  a  completed  transfer  to  the  University 
by  A.  in  his  lifetime  would  not  have  been '  assailable  either  by 
A.  while  living  or  his  heirs  after  his  death,  nevertheless,  when 
affirmative  action  by  the  court  is  necessary  to  compel  a  transfer 
of  the  title,  it  will  not  be  taken.  The  title  was  not  legally  be- 
queathed, and  the  court  will  not  order  a  transfer  of  the  property 
Avhen  the  corporation,  by  receiving  it,  will  instantly  render  its 
charter  liable  to  forfeiture.  See  the  elaborate  discussion  by  Peck- 
ham,  ,T.,  in  Re  McGraw,  111  N.  Y.  66;  Wood  v.  Hammond,  16  R.  L 
98,  116. 


CORPORATIONS  137 

IV.  RIGHTS  OF  SHAREHOLDERS 
a.    Power  of  the  Majority. 

27.  At  a  regular  stockholders'  meeting  of  the  X.  corporation, 
a  motion  is  passed  committing  the  company  to  a  change  of  its 
business  policy,  which  seems  imprudent  and  dangerous  to  the 
minority.     Assuming   that  nothing  outside   the  chartered  au- 
thority is  implied  in  the  new  measures,  what  can  the  dissenters 
do  to  prevent  them? 

They  have  no  means  of  prevention,  except  by  persuasion  of 
the1!  associates.  When  a  corporation  is  formed,  every  stockholder 
agrees  that  the  will  of  the  majority,  when  exercised  in  good  faith 
and  for  purposes  within  the  scope  of  the  undertaking,  shall  pre- 
vail. Even  if  as  a  matter  of  fact  the  decision  is  clearly  unwise  and 
inexpedient,  there  is  no  help  for  it.  1  Morawetz  on  Corporations, 
§§  243,  244;  Dudley  v.  Kentucky  High  School  9  Bush  (Ky.),  576; 
Elkins  v.  K.  E.  Co.,  36  N.  J.  Eq.  241. 

When,  however,  the  majority  propose  to  go  outside  the  original  ob- 
jects of  the  company,  and  undertake  projects  not  included  in  the 
charter  or  articles  of  association,  any  stockholder  may  interfere  by 
Injunction,  however  promising  the  schemes  may  be.  The  charter  is 
the  statement  of  his  contract,  and  he  remains  free  to  decide  whether 
he  will  divert  the  funds  so  invested  to  different  channels.  Changes 
in  the  method  of  operation  are  permissible,  but  the  majority  cannot  un- 
dertake to  "  advance  objects  essentially  different  or  to  advance  the 
same  objects  in  methods  essentially  different  from  those  originally  con- 
templated." Union  Locks  v.  Towne,  1  N.  H.  44;  s.  c.,  8  Am.  Dec.  32 
(the  case  should  be  read  in  full);  Hartford,  etc.  v.  Croswefl,  5  Hill,  383. 

b.    Bight  of  Shareholder  to  Sue  on  Behalf  of  the  Corporation. 

28.  A  shareholder  brought  a  bill  in  equity  against  the  directors 
of  the  corporation,  alleging  that  they  had  sold  their  own  land  to 
the  corporation  at  a  price  far  in  excess  of  its  value,  and  asking 
relief.      The  directors  demurred.      What  decision? 

It  is  well  settled  that  when  an  actionable  wrong  has  been  com- 
mitted against  a  corporation  by  its  own  agents,  or  when  those 
agents  exceed  their  discretionary  powers  in  refusing  to  bring  suit 
to  protect  the  corporate  interests,  a  court  of  equity  will  take 
cognizance  of  the  matter,  in  order  to  protect  the  rights  of  a  single 
stockholder,  who  is  allowed  to  enforce  the  right  of  action  belong- 
ing to  the  corporation.  1  Morawetz  on  Corporations,  §§  245, 
248;  Hawes  v.  Oakland,  104  U.  S.  450;  Brewer  v.  Proprietors,  104 
Mass.  378. 

There  are,  however,  two  important  exceptions  to  the  rule.  (1) 
The  stockholder  cannot  bring  his  bill  if  the  act  complained  of  is 
such  that  the  corporation  by  a  majority  vote  can  legally  adopt 


138  QUESTIONS  AND  ANSWERS. 

and  confirm  it.  The  case  put  in  the  question  is  one  of  this  char- 
acter. Such  a  sale,  since  the  directors  are  in  a  fiduciary  position, 
is  voidable  at  the  option  of  the  corporation,  but  it  is  voidable 
only,  and  a  court  will  not  take  action  to  set  it  aside  at  the  instance 
ot  a  shareholder,  when  a  corporate  meeting  may  be  at  the  same 
moment  exercising  its  right  to  ratify  it.  -Foss  v.  Harbottle,  2 
Hare,  461. 

(2)  It  must  also  appear,  unless  delay  would  very  greatly  pre- 
judice his  interests,  that  the  complainant  has  made  an  earnest  en- 
deavor to  induce  the  corporation  to  remove  the  delinquent  officers, 
and  appoint  others  who  will  take  action  to  protect  the  corporate 
interests.  This  restriction  is  one  of  practical  convenience  and 
common  sense.  It  is  not  desirable  that  any  and  every  stockholder 
should  have  free  rein  in  bringing  such  suits.  Several  individuals 
might  bring  suits  to  redress  the  same  wrong;  and  moreover,  the 
only  valid  ground  for  asking  the  court  to  take  jurisdiction  is  that 
the  suitor  has  exhausted  all  the  established  means  for  protecting 
his  interests,  and  found  them  inadequate.  The  exception  is 
thoroughly  established.  Smith  v.  Hurd,  12  Met.  371  (decided 
before  equity  jurisdiction  existed  in  Massachusetts);  Hawes  v.  Oak- 
land, supra;  Dunphy  v.  Traveller  Assn.,  146  Mass.  495;  Tuscaloosa 
v.  Cox,  68  Ala.  71.  On  the  whole  subject,  see  1  Morawetz  on 
Corporations,  §§  237-253. 

29.  Suppose  the  directors  who  Tiave  defrauded  the  corporation 
own  a  majority  of  the  stock,  or  are  in  coUusion  with  those  who 
do.  What  effect  does  this  additional  fact  have? 

In  that  case  (as  well  as  in  the  case  where  the  majority  have  no  au- 
thority or  right  to  bind  the  corporation  by  ratification,  1  Morawetz 
on  Corporations,  §  249),  the  fact  should  be  set  out  in  the  complaint 
to  excuse  the  protesting  stockholder  from  making  an  effort  to  have 
the  corporation  act.  The  reason  for  requiring  him  to  delay  until  he 
has  tried  the  usual  means  of  redress  fails  when  it  would  be  useless 
for  him  to  do  so.  If,  therefore,  the  majority  are  themselves  the 
wrongdoers,  or  are  controlled  by  them,  or  if  they  have  prevented 
suit  being  brought  for  the  corporation,  or  in  any  way  have  acted 
so  that  the  corporate  meeting  would  not  furnish  a  fair  hearing,  it 
need  not  be  called.  Atwool  v.  Merrvweather,  L.  K.  5  Eq.  464,  n.; 
Brewer  v.  Proprietors,  104  Mass.  394;  Hawes  v.  Oakland,  104 
IT.  S.  450. 

One  further  point  should  be  added.  If  the  stockholder  «is  seeking, 
not  to  gain  affirmative  relief  from  transactions  already  accomplished, 
but  to  prevent  agents  from  entering  upon  unauthorized  dealings,  he 
can  secure  at  least  a  temporary  injunction,  even  if  the  acts  are  capable 
of  ratification  by  the  majority.  For  example,  where  a  corporation  had 
power  by  majority  vote  to  increase  its  stock,  and  the  directors  at- 


CORPORATIONS.  139 

tempted  to  issue  the  increase  on  their  own  responsibility,  they  were 
enjoined  at  the  suit  of  a  stockholder.  Railway  Co.  v.  Allerton,  18 
Wall.  288.  See  1  Morawetz  on  Corporations,  §§  250,  254. 

c.    Transfer  and  its  Effect;    and  Other  Bights. 

30.  The  directors  of  a  certain  corporation  did  certain  acts  on 
behalf  of  the  company,  which  were  actionable  by  the  corporation. 
Knowledge  of  this  came  to  some  of  the  stockholders,  but  not  to 
all.      Those  who  knew  acquiesced  in  the  situation,  and  later  one 
of  them  sold  his  stock  to  a  third  party.      Can  the  latter  bring 
suit  (assuming,  of  course,  that  the  corporation  refuses  to  do  so)  ? 

This  depends  upon  whether  or  not  he  knew  at  the  time  of  his 
purchase  that  his  transferor  had  acquiesced  in  the  wrong  done. 

If  his  transferor,  while  still  a  stockholder,  had  tried  to  bring 
such  a  suit  in  the  name  of  the  corporation,  he  would  have  been 
thrown  out  of  court.  For  although  the  right  of  action  is  that 
of  the  corporation,  and  not  of  the  stockholder  who  sues,  it  is  not 
permissible  for  one  who  has  ratified  and  condoned  (or  perhaps 
participated  in)  the  wrong,  to  assume  to  enforce  the  corporate 
rights  and  pursue  the  wrongdoers.  Kent  v.  Quicksilver  Mining 
Co.,  78  N.  Y.  159. 

The  right  of  action,  however,  unless  it  is  extinguished  by  unani- 
mous ratification  or  acquiescence  by  all  the  stockholders,  remains 
one  of  the  assets  of  the  company,  and  when  stock  is  sold  it  carries 
with  it  the  right  to  share  in  the  profits  from  that  asset  as  well  as 
from  others.  The  disqualification  from  bringing  suit  (of  one  who 
has  acquiesced)  is  personal  to  him,  and  the  buyer,  therefore,  if  he 
has  no  knowledge  of  this  acquiescence  of  his  predecessor  in  title,  can 
assert  the  right  of  action  on  behalf  of  the  corporation  in  the  usual 
way.  It  is,  in  this  respect,  somewhat  analogous  to  the  transfer 
of  negotiable  paper.  See  1  Morawetz  on  Corporations,  §§  261- 
268;  Parsons  v.  Joseph,  92  Ala.  403.  Cf.  Parsons  v.  Hayes,  14  Abb. 
N.  C.  (N.  Y.)  425  et  seq. 

31.  X.,  who  rras  the  owner  of  certain  certificates  of  stock,  and 
also  of  bonds  of  the  Y.  corporation,  lost  them,  though  not  guilty 
of  any  lack  of  proper  care.      The  certificates  he  had  indorsed  in 
blank  and  the  bonds  were  payable  .to  bearer.      Z.  bought  them 
for  full  value  from  the  finder,  and  V-HK  without  notice  of  their 
past  history.     What  interest  did  Z.   acquire? 

He  secured  a  perfect  title  to  the  bonds,  but  none  at  all  to  the 
stock  certificates. 

At  common  law,  a  bond  payable  to  blank  was  void,  because,  being 
under  seal,  the  blank  could  not  be  filled  on  the  mere  parol  author- 
ity of  the  maker,  and  because,  to  allow  such  authority  to  be  suffi- 
cient would  have  this  very  effect  of  making  bonds  negotiable.  In 


140  QUESTIONS  AND  ANSWERS. 

this  country,  however,  by  universal  custom  and  repeated  decision, 
the  convenience  and  practical  necessities  of  trade  have  prevailed 
to  make  State,  municipal  and,  other  corporate  bonds  negotiable 
instruments,  if  by  their  terms  they  are  payable  in  blank,  or  to 
bearer,  or  to  A.  or  order.  White  v.  R.  R.  Co.,  21  How.  575;  Seybel 
v.  Bank,  54  N.  Y.  288. 

Certificates  of  stock  are  of  a  wholly  different  character.  "When 
1  they  are  transferred,  the  transaction  is  something  between  an  or- 
dinary assignment  and  the  transfer  of  a  bill  or  note.  It  is  not 
an  assignment,  for  the  buyer  does  not  afterwards  act  in  the  name 
and  place  of  the  seller;  he  is  substituted  for  him  in  the  corporate 
body.  On  the  other  hand,  it  is  unlike  the  transfer  of  a  bill  or  note, 
because  the  certificate  is  not  in  itself  the  property  which  is  sold, 
It  is  a  "  muniment  of  title,"  an  evidence  of  the  right  to .  partici- 
pate in  the  operations  of  the  corporation.  Hence,  the  doctrine  of 
bona  fide  purchaser  does  not  attach.  The  registration  laws,  which 
are  generally  provided  in  varying  terms  by  the  charter  of  the  corpo- 
ration or  otherwise,  tend  to  the  same  result.  East  Birmingham,  etc. 
v.  Dennis,  85  Ala.  565;  Barstow  v.  Savage  Mining  Co.,  64  Cal.  388; 
B.  c.,  49  Am.  Rep.  705.  Compare  also  Fisher  v.  Essex  Bank,  5' 
Gray,  373,  per  Shaw,  Ch.  J. 

Where,  however,  a  certificate  of  stock  indorsed  in  blank  is  in- 
trusted to  a  broker  for  a  special  purpose,  and  he  sells  it  in  excess  of 
his  authority,  or  where  in  any  way  the  owner  clothes  another  with 
apparent  power  to  dispose  of  the  stock  and  a  third  party  buys  in  in- 
nocent reliance  upon  the  indicia  of  ownership,  thus  conferred,  the 
owner  is  upon  ordinary  principles  estopped  to  set  up  his  title.  See  the 
cases  just  cited;  and  also  McNeil  v.  Bank,  46  N.  Y.  325;  2  Ames  on 
Bills  and  Notes,  784,  and  cases. 

32.  "What  is  the  difference  'between  a  stockholder's  right  to 
profits  before,  and  after,  a  dividend  is  declared? 

According  to  the  ordinary  course  of  business  the  power  of  de- 
termining when  to>  declare  a  dividend  out  of  the  accumulated 
profits  of  the  corporation  rests  with  the  directors.'  The  interest 
of  a  shareholder  in  these  profits  is  merely  an  undivided  and  remote 
interest  in  common  with  the  other  shareholders,  and  it  is  only 
when  the  directors  abuse  their  discretion  that  he  can  bring  a  share- 
holder's bill  to  compel  the  declaration  of  a  dividend.  Some  part 
of  the  earnings  may  well  be  set  apart  as  a  surplus  fund,  or  to  in- 
crease and  develop  the  business,  and  the  facts  of  each  case  must 
determine  whether  the  directors  are  wrongfully  refusing  to  divide 
the  profits  or  not.  They  have  a  wide  discretion.  Pratt  v.  Pratt, 
33  Conn.  456;  Scott  v.  Eagle  Fire  Ins.  Co.,  7  Paige,  203. 

On  the  other  hand,  "  after  a  dividend  is  declared,  all  com- 
munity of  interest  in  relation  to  such  dividend,  as  between  the- 


CORPORATIONS.  141 

stockholders  themselves  and  between  the  stockholders  and  the  cor- 
poration, is  at  an  end.  •  The  right  of  a  party  to  whom  the  dividend 
is  payable  is  recognized  as  a  separate  and  independent  right  which 
may  be  enforced  as  against  the  corporation  *  *  *  .  The 
true  principle  is,  that  the  dividend,  from  the  time  that  it  is  de- 
clared, becomes  a  debt  due  from  the  corporation  to  the  individual 
stockholder,  for  the  recovery  of  which,  after  demand  of  payment, 
an  action  at  law  may  be  maintained."  King  v.  Paterson,  etc., 
Co.,  29  X.  J.  Law,  82  and  504. 

It  is  a  severance  of  so  much  money  from  the  general  mass  of  the 
company's  funds,  and  if  the  company  becomes  insolvent  after  the 
declaration,  the  money  so  appropriated  cannot  be  used  for  pay- 
ment of  creditors.  It  is  the  property  of  the  individual  stockhold- 
ers. Le  Roy  v.  Ins.  Co.,  2  Edw.  Ch.  657. 

33.  Suppose  a  stockholder  owns  land  which  will  be  increased 
in  value  by  certain  contemplated  operations  of  the  corporation. 
Can  his  rote  in  favor  of  such  operations  be  questioned? 

A  stockholder  is  very  seldom  disqualified  from  voting  by  his  in- 
terest or  his  motive.  In  general,  such  considerations  cannot  be 
regarded;  on  practical  grounds,  it  would  be  impossible  to  in- 
quire into  them,  and  the  right  of  each  stockholder  to  the  benefit 
of  the  personal  judgment  of  the  others  is  rather  vague  and 
shadowy,  though  an  express  provision  by  charter  or  by-law  is  still 
necessary  to  validate  voting  by  proxy.  1  Morawetz  on  Corpora- 
tions, §  486.  Agreements  among  stockholders  to  vote  for  certain 
measures  or  in  a  certain  way,  even  for  a  period  of  some  years  in 
the  future,  are  not  necessarily  illegal  (Mobile,  etc.,  Co.  v.  Nicholas, 
98  Ala.  92),  but  they  are  not  favored  (Shepaug  Voting  Trust, 
60  Conn.  553;  State  v.  Standard  Oil  Co.,  49  Ohio  St.  137;  s.  c., 
49  Am.  St.  Rep.  541);  and  it  is  a  rule  that  if  the  majority  use  their 
votes  to  control  the  corporate  action  unfairly,  or  for  their  personal 
ends,  any  of  the  minority  can  interfere.  1  Morawetz  on  Corpora- 
tions, £§*477,  529;  Barr  v.  R.  R.  Co.,  96  N.  Y.  444.  And  see  Ques. 
28-30,  supra. 

V.  RIGHTS  OF  CREDITORS. 
a.     Bights  "With  Respect  to  the  Capital. 

34.  When,  if  ever,  can  a  creditor  interfere  with  the  control  of 
corporate  affairs? 

The  limits  upon  the  rights  of  creditors  to  interfere  with  the 
management  and  disposition  of  the  capital  of  a  "  going  "  corpora- 
tion are  not  very  plainly  marked. 

The  capital  is  frequently  said  to  be  a  "  trust  fund  "  for  the  cred- 
itors, but  this  must  not  be  taken  literally.  A  .corporation  is  no 
more  a  trustee  for  its  creditors  than  an  individual  is  for  his 


QUESTIONS  AND  ANSWERS. 

"  A  corporation  is  a  distinct  entity;  *  *  *  in  law  it  is  as 
distinct  a  being  as  an  individual  is,  and  is  erititled  to  hold  property 
as  absolutely  as  an  individual  can  hold  it.  Its  estate  is  the  same; 
its  interest  is  the  same;  its  possession  is  the  same."  Graham  v. 
E.  R.  Co.,  102  U.  S.  148.  And  see  Catlin  v.  Eagle  Bank,  6  Conn. 
233. 

If  a  corporation  is  making  a  fraudulent  conveyance  to  avoid  its 
creditors'  claims,  a  creditor  can  interfere  just  as  in  the  case  of  a 
similar  act  by  an  individual  (Graham  v.  R.  R.  Co.,  supra;  Pond  v.  R. 
R.  Co.,  130  Mass.  134);  and  possibly  he  may  do  so  if  there  is  a  funda- 
mental alteration  of  the  enterprise  whereby  his  security  .is  im- 
paired, as  from  a  railroad  company  to  a  mining  venture,  for  this 
would  be  like  the  dissolution  of  the  corporation  and  the  formation 
of  a  new  one.  2  Morawetz  on  Corporations,  §§  807,  808. 

But  the  company  retains,  and  must  be  understood  by  every  cred- 
itor to  retain,  the  widest  discretion  in  the  management  of  its  own 
affairs.  Continual  interference  would  be  intolerable;  and,  there- 
fore, the  mere  improvidence  of  a  corporate  act,  if  without  fraud, 
furnishes  no  ground  for  a  creditor  to  interpose  (2  Morawetz  on  Cor- 
porations, §§  782,  783;  Mills  v.  Northern  Ry.  Co.,  L.  R.  5  Ch.  App. 
621;  Pond  v.  R.  R.  Co.,  supra);  and  this  is  true,  even  if  the  corpo- 
ration is  insolvent  in  the  sense  of  being  unable  at  the  time  to  pay 
its  debts;  it  can  continue  the  management  and  control  of  its  affairs 
unless  the  assets  are  being  fraudulently  diverted  or  are  going  to 
waste.  2  Morawetz  on  Corporations,  §§  786,  787;  Paulding  v. 
Chrome  Co.,  94  N.  Y.  336;  Catlin  v.  Eagle  Bank,  supra. 

35.  If  the  capital  of  a  corporation  has  been  returned  to  .the 
stockholders,  either  directly  by  a  division  or  indirectly  by  the 
payment  of  dividends  when  there  have  been  no  profits,  what  re- 
dress has  a  creditor? 

In  either  of  the  cases  suggested  he  may,  upon  a  showing  that  he 
cannot  recover  his  debt  of  the  corporation  itself,  proceed  against 
the  stockholders  for  the  funds  so  distributed. 

The  capital  is  the  fund  which  is  represented  to  creditors  as  con- 
stituting the  property  of  the  corporation ;  and  it  is  upon  this,  there- 
fore, that  they  rely  in  dealing  with  it.  Frequently,  it  is  spoken  of  as 
a  trust  fund,  as  in  the  leading  case  of  Wood  v.  Dummer,  3  Mason, 
308,  where  there  was  an  actual  division  of  the  capital  itself  among 
the  stockholders.  More  accurately,  perhaps,  the  responsibility  to 
the  creditors  is  grounded  in  tort;  the  stockholders  in  effect  repre- 
sent that  so  much  property  has  been  put  into  the  enterprise  and 
has  not  been  taken  out.  Williams  v.  Boice,  38  1ST.  J.  Eq.  364,  and 
note  (where  stockholders  were  compelled  to  refund  dividends  the 
payment  of  which  had  impaired  the  capital).  But  compare  Mc- 
Donald v.  Williams,  174  U.  S.  397  (1898). 

Whichever  theory  is  correct,  the  principle  itself  is  well  established. 
Another  case  illustrating  it  is  that  where  an  indirect  return  of  capital 


CORPORATIONS.  143 

has  been  made  by  a  transfer  of  corporate  funds  or  property  to  a 
stockholder  by  a  purchase  of  his  shares;  he  is  liable  to  make  resti- 
tution, though  no  fraud  or  bad  faith  appears.  Clapp  v.  Peterson,  104 
111.  2fi;  Crandall  v.  Lincoln,  52  Conn.  73.  citing  many  authorities.  See 
on  the  whole  subject.  2  Story,  Eq.  Jur.,  §  1232;  Cook  on  Stock  and 
Stockholders.  §  456;  Bartlett  v.  Drew,  57  N.  T.  587.  Compare  McDon- 
ald v.  Williams,  174  U.  S.  397,  holding  that  a  receiver  cannot  recover 
a  dividend  paid  to  a  stockholder  out  of  capital  if  the  stockholder  bona 
fide  believes  it  to  be  paid  out  of  profits  and  the  corporation  is  solvent 
at  the  time. 

b.    Right  to  Compel  Payment  of  Stock  Subscriptions  in  Full. 

36.  The  X.  corporation  wag  organized  with  a  nominal  capi- 
tal of  $100,000.  Part  of  the  shares  were  taken  by  subscription 
and  75  per  cent,  of  the  par  value' paid  therein.  The  rest  were 
subsequently  issued  to  the  stockholders  as  "  bonus  "  stock,  i.  e., 
a  pure  gratuity.  Upon  the  insolvency  of  the  corporation,  it  is  at- 
tempted on  behalf  of  the  creditors  to  compel  the  stockholders  to 
pay  the  balance  of  their  subscriptions,  and  to  pay  the  par  value 
of  their  "  bonus  "  stock.  What  decision  ? 

It  is  well  settled  that  they  must  pay  both  of  these  items,  even 
if  by  some  device  or  other,  such  as  a  release  or  a  change  in  the 
form  of  indebtedness,  a  way  has  been  sought  to  cover  the  fact  of 
non-payment.  Courts  are  not  unanimous,  however,  as  to  the  reason 
of  the  rule.  The  commonest  explanation  is  set  forth  in  a  leading 
case,  to  the  effect  that  the  capital  stock  is  a  trust  fund  for  credit- 
ors. Sawyer  v.  Hoag,  17  Wall.  610.  And  see  Cook  on  Stock  and 
Stockholders,  §  199,  and  cases.  But  this  term  is  misleading  and 
has  been  explained  by  the  Supreme  Court  itself  to  mean  only  that 
the  claims  of  creditors  must  be  satisfied  before  any  of  the  capital 
can  be  distributed  to  stockholders.  Fogg  v.  Blair,  133  U.  S. 
534,  541. 

Some  decisions,  again,  say  that  there  is  an  implied  contract. 
Flinn  v.  Bagley,  7  Fed.  Eep.  785.  A  third  view,  and  the  most  sat- 
isfactory, from  a  logical  standpoint,  is  that  stated  in  Hospes  v.  Car 
Co.,  48  Minn.  174.  This  court  repudiate  the  theory  of  a  "  trust," 
and  ground  the  liability  in  tort  for  fraud.  They  say:  "  Corporate 
property  is  not  held  in  trust,  in  any  proper  sense  of  the  term.  A 
trust  implies  two  estates  or  interests  —  one  legal  and  one  equitable; 
one  person  as  trustee  holding  the  legal  title,  while  another  as  cestui 
qnc  trust  has  the  beneficial  interest.  Absolute  control  and  power 
of  disposition  are  inconsistent  with  the  idea  of  a  trust.  *  *  * 
It  (a  corporation)  is  a  trustee  for  its  creditors  in  the  same  sense 
and  to  the  same  extent  as  a  natural  person,  but  no  further." 

And,  later,  in  exposition  of  the  tort  theory,  "  The  capital  of  a 
corporation  is  the  basis  of  its  credit.  *  *  *  People  deal 
with  it  and  give  it  credit  on  the  faith  of  it.  They  have  a  right  to 
assume  that  it  has  paid-in  capital  to  the  amount  which  it  repre- 
sents itself  as  having;  and  if  they  give  it  credit  on  the  faith  of  that 
representation,  and  if  the  representation  is  false,  it  is  a  fraud 
upon  them.  *  *  *  It  is  the  misrepresentation  of  fact  in 


144  QUESTIONS  AND  ANSWERS. 

stating  the  amount  of  capital  to  be  greater  than  it  really  is  that  is 
the  true  basis  of  the  liability  of  the  stockholder  in  such  cases;  and 
it  follows  that  it  is  only  those  creditors  who  have  relied  or  who  can 
fairly  be  presumed  to  have  relied  upon  the  professed  amount  of 
capital,  in  whose  favor  the  law  will  recognize  and  enforce  a  lia- 
bility against  the  holders  of  '  bonus  '  stock."  See  also  Williams 
v.  Boice,  38  N.  J.  Eq.  364. 

Thus,  this  liability  is  enforceable  only  by  creditors  who  became 
such  after  an  issue  of  stock  not  fully  paid  for,  and  who  did  not 
know  of  the  actual  facts  under  which  it  was  made.  First  Xational, 
etc.  v.  Co.,  42  Minn.  327;  s.  c.,  18  Am.  St.  Eep.  510.  And  these 
propositions  are  supported  also  by  the  "  trust  fund  "  advocates. 
Handley  v.  Stutz,  139  TL  S.  435;  Coit  v.  Gold,  etc.,  Co.,  119  id. 
343;  2  Morawetz  on  Corporations,  §§  829,  830. 

On  the  whole  subject,  see  a  voluminous  note,  3  Am.  St.  Eep.  806. 

The  question  whether  a  purchaser  of  stock  issued  as  fully  paid-up, 
and  bought  in  the  market  without  knowledge  that  any  balance  re- 
mained unpaid,  can  be  compelled  by  a  creditor  to  make  up  the  de- 
ficiency, is  more  difficult  On  the  one  hand,  there  is  the  right  of  the 
creditor  to  have  all  the  capital,  on  which  he  has  relied,  paid  in  in  money 
or  an  equivalent.  On  the  other,  there  is  the  great  desirability  of  making 
stock  readily  transmissible  from  hand  to  hand;  and  this  is  much  ham- 
pered, if  every  buyer  of  stock  represented  as  paid-up  must  investi- 
gate the  actual  facts  in  order  to  be  protected. 

The  latter  considerations  have  prevailed,  and  a  bona  fide  purchaser  of 
such  shares  is  safe.  2  Morawetz  on  Corporations,  §  836;  Steacy  v.  R. 
R.  Go.,  5  Dill.  348;  Brant  v.  Ehlen,  59  Md.  1. 

37.  The  X.  corporation,  in  purchasing  certain  land  needed  for 
the  purposes  of  the  enterprise  in  which  it  was  engaged,  paid  the 
seller  for  it  in  stock.  The  par  value  of  the  stock  was  greater 
than  the  actual  value  of  the  land  by  some  $10,000.  On  the  in- 
solvency of  the  corporation  the  creditors  claimed  that  the  seller 
had  not  fully  paid  for  his  stock  and  must  make  up  the  $10,000. 
Decision  for  whom  ? 

The  decision  is  for  the  defendant,  provided  the  contract  between 
him  and  the  company  was  made  in  good  faith,  and  the  property 
put  in  at  a  fair  b&na  fide  valuation.  Originally,  stock  had  to  be 
paid  for  in  money,  but  the  rule  is  now  universal  that  a  payment  is 
good  if  made  by  work  and  labor,  or  by  a  transfer  of  property,  if  the 
circumstances  just  stated  appear.  In  other  words,  actual  fraud, 
of  which  a  gross  overvaluation  would,  of  course,  be  strong  evi- 
dence, must  be  shown  in  order  to  impeach  the  transaction.  Coit  v. 
Gold,  etc.,  Co.,  119  U.  S.  343;  Wetherbee  v.  Baker,  35  N.  J.  Eq. 
501.  The  case  of  Van  Cott  v.  Van  Brunt,  82  X.  Y.  535,  seems 
contra;  but  see  the  criticism  of  the  case,  2  Morawetz  on  Corpora- 
tions, §  826. 


CORPORATIONS.  145 

c.     Statutory  Liability  of  Stockholders  for  Corporate  Debts,  in  Excess 
of  Subscription  for  Snares. 

38.  A  Kansas  statute  provided  that  shareholders  in  corpora- 
tions should  be  personally  liable  for  the  corporate  debts.      The 
X.  corporation  ivas  formed  after  the  statute  was  passed  and  Y. 
became  a  stockholder  by  subscription  outside  of  Kansas.     To 
what  kind  of  a  liability  is  he  subject? 

Every  stockholder  in  a  corporation  becomes  a  party  to  the  pro- 
visions of  its  charter  and  of  the  laws  relating  to  such  corporations 
which  are  in  force  in  the  State  where  it  is  created,  no  matter  where 
he  lives  or  where  his  subscription  occurred.  Such  statutes  as  the 
one  in  question,  being  in  force  at  the  formation  of  the  corpora- 
tion, are  part  of  the  voluntary  agreement  of  the  members,  and 
bind  them  to  the  corporation  creditors  in  a  contractual  obligation. 
Thus,  this  obligation  is  under  the  protection  of  the  Federal  Con- 
stitution, forbidding  the  impairment  of  the  -obligation  of  contract. 
Hawthorne  v.  Calef,  2  Wall.  10. 

Moreover,  it  is  not  a  penalty,  in  the  sense  of  a  punishment  pro- 
vided as  a  police  regulation  for  the  protection  of  the  State  which 
passes  the  law  and,  therefore,  unenforceable  in  other  States.  It  is, 
on  the  contrary,  remedial  in  its  character,  intended  for  the  benefit 
of  individuals  dealing  with  the  corporation,  and  enforceable  in 
any  court  which  has  jurisdiction  of  the  parties  and  of  such  a 
subject-matter.  Plash  v.  Conn,  19  IT.  S.  371;  Paine  v.  Stewart,  33 
Conn.  517.  A  neat  case,  in  illustration,  is  AViles  v.  Suydam,  64  N. 
Y.  173:  A  statute  provided  for  personal  liability  of  shareholders 
and  of  directors  until  certain  papers  were  filed,  the  directors  being 
the  agents  charged  with  the  executive  duty  of  filing  them.  It 
was  held  that  a  person  who  was  both  a  shareholder  and  a  director 
could  not  be  sued  in  the  same  action  as  shareholder  and  as  director, 
being  liable  in  contract  in  the  former  capacity  and  for  a  penalty 
in  the  latter.  See  also  Derrickson  v.  Smith,  27  N.  J.  Law,  166;  and 
compare  Huntington  v.  Attrill,  146  U.  S.  657;  Diversey  v.  Smith, 
103  111.  378;  s.  c.,  42  Am.  Rep.  14. 

The  cases  are  in  some  confusion,  owing  partly  to  differences  in 
the  legislative  language  and  intent,  and  partly  to  different  construc- 
tions of  statutes  seemingly  identical  in  structure.  See,  on  the  whole 
subject,  2  Morawetz  on  Corporations,  §§  869-881,  especially  §§  870 
and  877. 

39.  Suppose,  under  a  statute  of  the  kind  spoken  of  in  the  pre- 
ceding question,  a  debt  is  incurred.      A.  is  then  a  stockholder, 
'but  before  suit  is  brought  he  sells  to  B.     Which  one  is  liable  to 
the  creditor? 

Sometimes  the  statutes  provide  for  this  contingency,  as  for  ex- 
ample, by  making  a  stockholder  liable  for  one  year  after  the  debt 
arises.  When  no  provision  is  made,  the  better  doctrine  is  that  the 

10 


146  QUESTIONS  AND  ANSWERS. 

one  who  owns  the  stock  when  the  obligation  is  enforced  is  the  one 
to  be  sued.  As  between  A.  and  B.  themselves,  and  as  between 
them  and  the  corporation,  it  is  always  understood  that  B.  steps 
into  A.'s  shoes  as  to  all  rights  and  liabilities,  and,  as  a  practical 
matter,  this  liability  ought  to  be  included  with  the  rest.  Other- 
wise, it  would  cause  almost  inextricable  confusion  and  needlessly 
long  and  expensive  litigation  to  adjust  the  rights  of  all  parties. 
Moreover,  in  the  L  ise  of  large  corporations,  the  personal  credit  of 
individual  stockholders  seldom  enters  into  the  calculations  of  the 
third  party.  2  Morawetz  on  Corporations,  §§  888-891;  Curtis  v. 
Harlow,  12  Met.  3;  Middletown  Bank  v.  Magill,  5  Conn.  28,  63-71. 
Contra,  Chesley  v.  Pierce,  32  N.  H.  388.  Cf.  Allen  v.  Sewall,  2 
Wend.  327;  Rosevelt  v.  Brown,  11  N.  Y.  148. 

VI.     MUNICIPAL  CORPORATIONS. 

a.     In  General. 

40.  An  act  of  the  Michigan  legislature  created  a  Board  of 
Park  Commissioners  for  the  city  of  Detroit,,  empowered  them  to 
purchase  land  for  a  large  city  park,  and  commanded  the  city 
authorities  to  provide  the  money  to  pay  for  it  by  taxation.  They 
refused  to  do  so.  Can  they  be  compelled  to  lay  the  tax  ? 

This  brings  up  the  important  distinction  between  the  public 
character  of  a  municipal  corporation,  as  a  political  subdivision  of 
the  State,  and  its  private  or  proprietary  character  as  a  corporate 
individual. 

In  its  former  character,  it  is  universally  held  that  it  is  com- 
pletely under  the  control  of  the  legislature,  except  so  far  as 
that  body  is  restrained  by  the  State  or  the  Federal  Constitu- 
tion. Being  merely  an  instrumentality  created  for  the  more 
convenient  administration  of  the  government,  its  powers  as  well  as 
its  territory  can  be  enlarged  or  diminished  at  any  time;  and  ita 
rights  and  property  are  held  for  the  welfare  of  the  State  as  a 
whole,  rather  than  for  local  purposes.  Powers  and  privileges  which 
may  be  granted  it,  in  this  capacity,  are  not  contracts,  and  are,  there- 
fore, subject  to  modification  or  repeal,  as  the  legislature  may  deem 
expedient. 

Thus,  the  legislature  may  divide  a  township  and  apportion  its 
liabilities  between  the  two  sections  (Laramie  County  v.  Albany 
County,  92  U.  S.  307);  it  may  control  the  means  provided  by  a 
municipal  corporation  for  the  maintenance  and  equipment  of  a 
police  force  (Baltimore  v.  Board  of  Police,  15  Md.  376);  or  repeal  a 
ferry  franchise  granted  to  a  municipality.  East  Hartford  v.  Hart- 
ford Bridge  Co.,  10  How.  511.  See  also  1  Dillon,  Mun.  Corp.  (4th 
ed.).  §§  56,  57,  60-62.  65-68,  71. 

On  the  other  hand,  it  is  also  recognized  that  such  corporations 
can  hold  certain  property  and  have  certain  property  rights  in  a 
proprietary  or  private  character,  for  the  benefit  of  the  local  com- 


CORPORATIONS.  147 

munity  solely,  and  with  many  of  the  ordinary  rights  and  liabilities 
of  private  ownership.  The  line  of  distinction  is  a  delicate  one  to 
draw,  and  by  no  means  settled  by  the  decisions.  1  Dillon,  supra, 
§§  57,  66,  67.  As  illustrations,  such  property  includes  a  building 
used  largely  as  a  source  of  revenue,  by  renting  to  private,  parties, 
Oliver  v.  Worcester,  102  Mass.  499;  as  well  as  city  gas  works,  West- 
ern, etc.  v.  Phila.,  31  Penn.  St.  183;  and  see,  for  further  illustration 
and  discussion,  1  Dillon,  supra,  §  68,  and  notes. 

The  facts  stated  in  the  question  are  those  of  People  v.  Detroit, 
28  Mich.  228;  s.  c.,  15  Am.  Rep.  202,  where  the  court  (per  Cooley, 
J.)  held  that  a  city  park  was  a  matter,  of  private  and  local  concern 
only,  and  that  the  State  had  no  right  to  tax  the  city  for  such  a 
purpose.  See  the  discussion  of  the  case  in  1  Dillon,  Mun.  Corp., 
§§  72-74,  and  cf.  Darlington  v.  Mayor,  31  1ST.  Y.  164,  192-206. 

41.  What  powers  are  impliedly  given  by  the  charter  of  a 
municipal  corporation?  How  does  the  rule  governing  the  sub- 
ject differ  from  that  concerning  charters  of  private  or  business 
corporations? 

Judge  Dillon  uses  this  language:  "It  is  a  general  and  undis- 
puted proposition  of  law  that  a  municipal  corporation  possesses 
and  can  exercise  the  following  powers  and  no  others:  First,  those 
granted  in  express  words;  second,  those  necessarily  or  fairly  im- 
plied in,  or  incident  to,  the  powers  expressly  granted;  third,  those 
essential  to  the  declared  objects  and  purposes  of  the  corporation  — 
not  simply  convenient,  but  indispensable."  1  Dillon,  Mun.  Corp., 
§  89. 

This  strict  rule  exists  because  public  corporations  do  not  de- 
pend upon  the  mutual  agreement  of  their  members.  The  majority 
rules  not  only  without  the  consent,  but  against  the  will,  of  the 
minority,  and  the  only  safety  for  individual  property  or  liberty 
lies  in  the  strict  construction  pointed  out  above.  Spaulding  v. 
Lowell,  23  Pick.  71;  Hackettstown  v.  Schwackhamer,  37  X.  J.  Law, 
191.  "  If  there  is  a  reasonable  doubt  as  to  its  existence,  it  (the 
power)  does  not  exist."  Baldwin,  J.,  in  Crofut  v.  Danbury,  65 
Conn.  294,  300. 

With  private  corporations  the  rule  is  also  that  the  only  powers 
implied  are  those  which  are  necessary  or  incident  to  those  ex- 
pressly granted,  but  a  more  liberal  construction  of  the  word  "  neces- 
sary "  is  adopted,  except  when  the  express  power  is  in  derogation 
of  some  public  right.  As  a  rule,  the  legislature  is  assumed  to 
intend  that  a  private  corporation  may  carry  on  its  affairs  like  an 
individual,  and  the  charter  is  construed  "  neither  strictly  nor 
liberally,  but  according  to  the  fair  and  natural  import  of  it,  with 
reference  to  the  purposes  and  objects  of  the  corporation."  Bell, 
Ch.  J.,  in  Downing  v.  Mt.  Washington  Road  Co.,  40  N.  H.  230. 
And  see  Ques.  9  and  10,  supra. 


QUESTIONS  AND  ANSWEES. 

b.    Liability  in  Tort. 

42.  A  police  officer,  appointed  and  paid  by  city  authorities, 
committed  an  assault  and  lattery  on  a  citizen,  while  attempting 
to  arrest  him.     The  officer  was  in  the  enforcement  of  a  city  or- 
dinance, but  acted  in  an  unjustifiable  manner.      Is  the  city 
liable? 

No.  The  officer  was  employed  to  perform  a  public  duty,  one  in 
which  the  city  had  no  special  interest  or  profit,  and  which  it  per- 
formed as  a  part  of  the  governmental  machinery  of  the  State. 
The  fact  that  the  officer  was  appointed,  employed  and  paid  by  the 
municipal  authorities  makes  no  difference;  that  system  is  only 
adopted  for  convenience  in  administering  the  functions  of  govern- 
ment. Buttrick  v.  Lowell,  1  Allen,  162.  By  the  same  principle 
a  city  is  not  liable  for  wrongful  or  negligent  acts  of  firemen  in  the 
performance  of  their  duties,  (Jewett  v.  New  Haven,  38  Conn.  368; 
Fisher  v.  Boston,  104  Mass.  87);  or  of  the  driver  of  an  ambulance. 
Maximilian  v.  New  York,  62  N.  Y.  160.  See  2  Dillon,  Mun.  Corp. 
§§  974-979. 

43.  A  traveler  was  injured  by  a  defect  in  a  bridge  caused  by 
the  neglect  of  the  county  to  repair  the  structure.     A  general  stat- 
ute imposed  the  duty  to  repair  bridges  upon  all  counties,  but  gave 
no  right  of  action  to  an  individual  injured  by  neglect.     Can  the 
county  be  held  liable? 

Towns,  counties,  school  districts  and  the  like,  being  quasi-corpo- 
rations  (i.  e.,  without  charters,  and  thus  wholly  involuntary  in 
organization),  are  at  common  law  not  liable  in  such  a  case,  and  no 
damages  can  be  recovered  except  under  a  statute  expressly  giving 
such  remedy.  The  doctrine  was  set  out  in  Russell  v.  Men  of  Devon, 
2  T.  R.  667,  as  based  on  the  fact  that  there  was  no  corporate  fund, 
or  means  of  obtaining  one,  from  which  to  satisfy  a  judgment.  This 
decision  was  upheld  in  this  country  in  Mower  v.  Leicester,  9  Mass. 
247,  and  is  generally  followed  in  the  other  States,  even  where  the 
town  has  power  to  levy  taxes  for  erecting  pu.blic  works  and  keeping 
them  in  repair.  The  duty  imposed  is  a  public  duty,  and  the  local 
corporation  derives  no  special  benefit  or  pecuniary  profit  from  it.  2 
Dillon,  Mun.  Corp.,  §§  962,  963,  and  notes;  Hill  v"  Boston,  122  Mass. 
344;  Eastman  v.  Meredith,  36  N.  H.  284;  Freeholders,  etc.  v. 
Strader,  18  N.  J.  Law,  108;  Dosdall  v.  County,  30  Minn.  96;  s.  c., 
44  Am.  Rep.  185. 

44.  Would  the  answer  be  the  same  if  the  injury  had  been 
caused  by  a  defect  in  a  city  street,  the  duty  of  keeping  streets  in 
repair  being  imposed  by  the  charter,  but  no  action  for  damages 
caused  by  defects  being  expressly  given  ? 

By  the  weight  of  authority,  the  city  is  liable  in  such  a  case. 
Sometimes  the  ground  for  thus  charging  a  city  or  incorporated 


CORPORATIONS.  1-40 

village,  when  a  quasi-corporation  (such  as  a  county)  would  not 
be  held  liable  under  the  same  circumstances,  is  placed  on  the 
ground  of  the  absolute  control  over  their  streets  granted 
to  such  corporations;  sometimes,  on  the  ground  that  their  char- 
ters are  in  fact  always  asked  for  (although  theoretically 
imposed  by  the  legislature),  and  that  a  contract  to  keep  streets  in 
repair  arises,  based  on  the  special  privileges  granted  to  the  com- 
munity by  the  incorporation.  Judge  Dillon  is  inclined  to  place 
it  upon  the  absolute  control  over  the  streets,  plus  the  adequate 
means  supplied  (by  power  of  taxation)  to  perform  the  obligation, 
plus  the  public  utility  of  the  doctrine.  However  that  may  be,  the 
rule  is  upheld  by  the  majority  of  our  courts.  Barnes  v.  Dist.  of 
Col.,  91  U.  S.  540,  551;  Weet  v.  Brockport,  16  N.  Y.  161;  2  Dillon, 
Mun.  Corp.,  §§  999,  1017,  1022,  1023;  and  see  the  dissenting  opin- 
ion by  Cooley,  J.,  in  Detroit  v.  Blakeby,  21  Mich.  84. 

Contra,  are  the  New  England  States  and  a  few  others,  the  lead- 
ing case  being  Hill  v.  Boston,  122  Mass.  344.  See  Burritt  v.  New 
Haven,  42  Conn.  174,  197  (and  cf.  Jones  v.  New  Haven,  34  Conn. 
1):  Detroit  v.  Blakeby,  supra.  But  in  these  States  statutes  gen- 
erally give  a  right  of  action.  See  2  Dillon,  supra,  1000,  note. 

45.  A  city  altered  a  street  so  that  a  stream  which  naturally 
ran  along  one  side  was  diverted  to  the  other  side,  thereby  securing 
better  drainage  for  the  highway.  The  work  was  carelessly  done, 
so  that  X.'s  cellar  was  flooded  at  every  heavy  rain.  Can  he 
recover  damages  from  the  city? 

The  course  of  the  decisions  on  this  general  subject  is  in  such  a 
state  of  confusion  and  contradiction  that  it  would  be  presumptuous 
to  attempt,  in  a  book  of  this  description,  to  speak  of  all  the  various 
rules,  and  modifications  and  exceptions  thereto,  which  have  been 
announced. 

It  is  clear,  nevertheless,  that  a  city  is  not  liable  to  individuals 
for  a  mere  failure  to  make  or  enforce  ordinances  or  to  exercise  a 
duty  like  that  of  providing  sewerage  or  fire  protection.  Such  a 
duty  is  legislative,  or,  perhaps,  quasi-judicial,  in  character.  Rivers 
v.  Augusta,  65  Ga.  376;  Lincoln  v.  Boston,  148  Mass.  578;  2  Dillon, 
Mun.  Corp.,  §  949,  and  cases.  And  it  is,  perhaps,  true  (for  the  same 
reason)  that  it  is  not  liable  for  damage  caused  by  defects  in  the 
plan  adopted,  as  distinguished  from  that  arising  from  a  careless 
construction  of  the  work.  Mills  v.  Brooklyn,  32  N.  Y.  489; 
Henkel  v.  Detroit,  49  Mich.  249;  Carr  v.  Northern  Liberties,  35 
Penn.  St.  324;  Child  v.  Boston,  4  Allen,  41.  But  see  2  Dillon, 
supra,  §§  1046-1047,  and  cases  cited. 

When,  however,  a  scheme  (e.  g.,  of  sewerage)  has  once  been 
adopted,  the  satisfactory  view,  and  the  one  most  generally  prevail- 
ing, is  that  the  duty  of  the  city  becomes  ministerial,  and  that  the 
corporation  is  liable  for  damage  caused  by  negligence  in  construc- 
tion or  in  the  maintenance  and  operation  of  the  works.  In  short  it  is 


150  QUESTIONS  AND  ANSWERS. 

then  liable,  whenever,  under  the  same  facts,  a  natural  person  would 
be  liable  to  the  individual  injured:  and  such  was  the  reasoning  and 
decision  on  the  facts  of  the  case  stated  in  the  question.  Xevins  v. 
Peoria,  41  111.  502;  s.  c.,  89  Am.  Dec.  392.  The  chief  reason  as- 
signed was  that  a  stream  of  mud  and  water  was  turned  upon  the 
plaintiff's  land.  See,  to  the  same  effect,  Seifert  v.  Brooklyn,  101 
X.  Y.  136;  s.  c.,  54  Am.  Eep.  664,  and  note;  Barton  v.  Syracuse,  36 
X.  Y.  54;  Field  v.  West  Orange,  36  X.  J.  Eq.  118.  The  principle 
that  municipal  corporations  may  be  held  liable  like  individuals,  for 
the  improper  management  of  property  held  by  them,  is  also  recog- 
nized in  Eastman  v.  Meredith,  36  X.  H.  258,  and  in  Oliver  v.  Wor- 
cester, 102  Mass.  489. 

It  may  be  added,  as  a  partial  explanation  of  the  existing  confusion 
on  the  subject,  that  in  practice  it  is  frequently  of  great  difficulty 
to  separate  the  legislative  duties  of  a  corporation  from  those  of  a 
ministerial  character,  or  to  distinguish  defects  in  a  plan  from  de- 
fects in  its  execution.  Rochester  White  Lead  Co.  v.  Rochester,  3 
N.  Y.  463;  s.  c.,  53  Am.  Dec.  316,  and  note;  2  Dillon,  supra, 
§§  1049-1051. 

c.    Liability  for  Money  Borrowed  or  Other  Benefits  Received. 

46.  Suppose  ihe  charter  of  a  city  contains  no  reference  to  'bor- 
rowing money.  Can  the  city  borrow  and  then  issue  negotiable 
paper  in  return  for  the  funds  so  obtained? 

It  is  generally  held  that  cities  have  an  implied  authority  to  bor- 
row money,  since  that  is  necessary  to  the  ordinary  management 
of  their  complex  affairs.  Pres.,  etc.  v.  Chillicothe,  7  Ohio 
(part  II),  31;  Mills  v.  Gleason,  11  Wis.  470;  Clarke  v.  School 
District,  3  R.  I.  199.  See  contra,  Hackettstown  v.  Schwackhanier, 
37  X.  J.  Law,  191,  and  cf.  1  Dillon,  Mun.  Corp.,  §§  117,  125. 

But  the  issuance  of  commercial  paper  is  a  different  matter.  The 
argument  of  necessity,  which  has  led  the  courts  to  imply  the  power 
to  borrow  money,  does  not  apply.  The  borrowing  which  may  be 
necessary  is  for  a  temporary  purpose,  to  provide  for  the  city's  wants 
until  they  can  be  met  by  the  only  proper  method  of  raising  funds  — 
taxation.  But  the  issue  of  negotiable  bonds  or  notes,  enforceable 
by  one  purchasing  in  good  faith  before  maturity  whatever 
may  have  been  the  equities  between  the  city  and  the  original 
holder,  may  easily  involve  the  citizens  in  overwhelming  debt,  con- 
tracted extravagantly  or  corruptly  by  careless  or  dishonest  officials. 
This  is  a  strong  argument  against  any  legislative  intent  to  im- 
pliedly  give  such  power,  and  represents  the  position  taken  by 
the  weightier  authorities.  1  Dillon,  Mun.  Corp.,  §§  507,  507a; 
Mayor  v.  Ray,  19  Wall.  478;  Hackettstown  v.  Schwackhanier,  supra. 
But  see  Mills  v.  Gleason,  supra;  Ketchum  v.  Buffalo,  14  X.  Y.  356, 
holding  less  strict  doctrines. 

If.  however,  there  is  an  express  power  to  borrow  money,  the 
power  to  issue  negotiable  obligations  may  generally  be  gathered 


CORPORATIONS.  151 

from  that.  1  Dill.,  supra,  §§  125-127;  \Villiamsport  v.  Common- 
wealth, 84  Penn.  St.  487.  But  see,  directly  contra,  Brenham  v. 
Bank,  144  U.  S.  173,  overruling  the  established  doctrine  of  the 
Federal  courts  and  pointing  out  that  if  a  legislature  wishes  to  give 
the  power  to  issue  bonds  it  is  easy  for  it  to  do  so  in  express  terms. 

47.  //  a  city  is  sued  on  a  contract  made  by  its  officers,  but 
ichich  is  outside  the  powers  conferred  by  its  charter,  can  the 
defense  of  ultra  vires  be  set  up?     And  if  so,  is  there  any  remedy 
for  a  contractor  from  whom   the  city  has  received  money  or 
property? 

The  general  rule  is,  undoubtedly,  that  municipal  corporations 
may  set  up  that  defense.  The  powers  of  its  officers  are  conferred 
by  legislative  enactment  and  every  one  must  take  notice  of  them 
.at  his  peril.  Moreover,  such  corporations  do  not  depend  for  their 
existence  upon  the  consent  or  mutual  contract  of  their  members; 
they  are  wholly  artificial  in  their  organization  and  have  such  pow- 
ers only  as  are  given  by  the  act  which  creates  them.  2  Morawetz 
on  Corporations,  §^  714.  718;  1  Dillon,  Mun.  Corp.,  §  457;  Vin- 
cent v.  Nantucket,  12  Cush.  103;  New  Jersey,  etc.  v.  Fire  Commis- 
sioners, 34  N.  J.  Eq.  117. 

If,  however,  a  city  receives  money  into  its  treasury  or  accepts 
and  enjoys  the  benefit  of  property  derived  under  an  ultra  vires  con- 
tract, it  is  bound  by  an  implied  or  quasi-contractual  obligation  to 
restore  it  or  pay  for  it,  unless  the  transaction  has  been  in  disregard 
of  a  positive  prohibition  of  law  or  is  in  violation  of  some  principle 
of  public  policy. 

In  the  words  of  Field,  Ch.  J.:  "If  the  city  obtains  money  of 
another  by  mistake  or  without  authority  of  law,  it  is  her  duty  to 
refund  it  —  not  from  any  contract  entered  into  by  her  on  the  sub- 
ject, but  from  the  general  obligation  to  do  justice  which  binds  all 
persons,  whether  natural  or  artificial.  If  the  city  obtain  other  prop- 
erty which  does  not  belong  to  her,  it  is  her  duty  to  restore  it;  or 
if  used  by  her,  to  render  an  equivalent  to  the  true  owner,  from 
the  like  general  obligation;  the  law,  which  always  intends  justice, 
implies  a  promise.  *  *  *  The  money  must  have  gone  into 
her  treasury  or  been  appropriated  by  her;  and  when  it  is  property 
other  than  money  it  must  have  been  used  by  her  or  be  under  her 
control."  Argenti  v.  San  Francisco,  16  Cal.  255,  282.  See  also  1 
Dillon,  Mun.  Corp..  £S  4:>s.  4<5->:  Hitchcock  v.  Galveston,  96  U.  S. 
341:  Thomas  v.  Port  Hudson,  27  Mich.  320;  Turner  v.  Cruzen,  70 
Iowa,  202. 

48.  A  statute  provided  that  when  authorized  by  a  majority 
vote  of  a  county,  the  County  Commissioners  were  to  subscribe 
for  bonds  of  a  certain    railroad.       A  vote  was  taken   and  the 
subscription  made.     The  bonds,  which  recited  the  statute  and  a 


152  QUESTIONS  AND  ANSWERS. 

majority  vote  under  the  election  therein  provided  for,  came 
into  the  hands  of  a  bona  fide  purchaser.  On  suit  by  him,  the 
county  set  up  as  a  defense  that  as  a  matter  of  fact  the  prescribed 
formalities  prior  to  the  election  had  not  been  performed.  De- 
cision for  whom? 

The  facts  stated  are  those  of  Knox  County  v.  Aspinwall,  21  How. 
539  (the  first  of  a  series  of  cases  on  the  subject),  where  it  was  held 
that  the  commissioners  were  the  body  designated  by  the  statute  to 
determine  whether  a  proper  majority  vote  had  been  had,  and  that 
since  the  bonds  recited  the  occurrence  of  all  the  conditions  neces- 
sary to  give  the  board  power  to  issue  them,  the  bona  fides  of  pur- 
chasers was  not  affected  by  their  not  inquiring  into  the  actual  facts 
of  the  matter.  The  recitals  bound  the  municipality  conclusively. 

An  additional  reason  for  thus  construing  the  legislative  intent 
was  that  to  require  such  an  investigation  would  destroy,  or  at  least 
seriously  affect,  the  market  for  securities  of  this  kind.  See  the  state- 
ment of  the  rule  by  Strong,  J.,  in  Town  of  Coloma  v.  Eaves,  92 
U.  S.  484,  491.  See  also  Humboldt  v.  Long,  92  id.  642;  Chaffee 
County  v.  Potter,  142  id.  355;  and  compare  Northern  Bank  v.  Por- 
ter Township,  110  id.  608,  where  the  rule  is  somewhat  qualified. 

The  doctrine  set  forth  briefly  above,  though  steadily  adhered  to 
by  the  Supreme  Court,  has  not  passed  unchallenged.  In  a  strong 
dissenting  opinion  to  Humboldt  v.  Long,  supra,  three  justices  (Mil- 
ler, Davis  and  Field)  expressed  their  conviction  that  it  was  danger- 
ous, unjust  and  illogical.  They  urged  that  an  agent  cannot  establish 
his  authority  by  his  own  representations,  that  legislative  restric- 
tions on  taxation  are  rendered  abortive  by  such  a  construction, 
and  that  an  easy  road  to  fraud  is  provided,  for,  apparently,  the 
only  bonds  that  can  be  questioned  are  those  which  are  issued  in 
the  face  of  an  absolute  prohibition,  and  which  show  by  their  con- 
tents that  they  are  so  issued.  This  view  is  supported  by  Judge 
Dillon.  See  his  Mun.  Corp,,  §§  518-531. 


CRIMINAL  LAW.  153 


LAW. 


I.   GENERALLY. 

1.  What  is  a  crime? 

A  crime  "  is  a  violation  or  neglect  of  a  legal  duty,  of  so  much 
public  importance  that  the  law,  either  common  or  statute,  takes 
notice  of  and  punishes  it."  May's  Grim.  L.  (2d  ed.)  1. 

2.  What  elements  are  necessary  to  constitute  a  criminal  act? 

(1)  All  illegal  acts  are  not  criminal.     An  act  only  becomes  a 
crime  when  it  is  of  such  a  character  that  the  interests  of  the  public 
are  involved.     Acts  which  merely  injure  private  persons  individu- 
ally, are  redressed  by  civil  suits,  in  which  the  government  is  no 
party.     Rex  v.  Wheatley,  2  Burr.  1125,  1128. 

(2)  The  act  neeJ  not  be  morally  wrong.     If  the  public  good 
demands  that  rapid  driving  be  made  a  crime,  one  who  disobeys  the 
statute,  though  in  perfect  ignorance,  has  still  committed  a  criminal 
act. 

(3)  There  must  be  a  criminal  intent  or  criminal  negligence. 
Criminal  intent  is  simply  an  intent  to  do  the  act  which  violates 
the  law  and  is  not  necessarily  joined  with  an  immoral  motive.     In 
the  case  of  a  statute,  unless  the  legislature  meant  otherwise,  the 
intent  is  usually  implied  from  the  mere  violation,  and  ignorance 
of  the  statute  is  no  excuse.     The  intent  may  also  be  constructive, 
as  where  a  man,  intending  to  commit  one  crime,  commits  another. 
Specific  intent  is  only  necessary  when  it  is  a  necessary  part  of  the 
crime,  as  assault  with  intent  to  kill.     Such  an  intent  can  never  be 
constructive.     May's  Crim.  L.  (2d  ed.)   17-26. 

(4)  There  must  be  a  criminal  capacity,  both  mental  and  physical. 
Thus,  infant?,  who  have  not  reached  years  of  discretion  or  of 
criminal  capacity,  and  insane  people  are  not  held  criminally  for 
their  acts.    Voluntary  drunkenness,  however,  is  no  excuse,  though 
it  is  admissible  as  evidence  upon  the  existence  of  a  specific  intent. 
1)  lirium    tremens    and    involuntary    intoxication,    however,    are 
tr  ated  a?  excusing  a  man  from  criminal  liability.     May's  Crim. 
L.  (2d  ed.)  26-37. 

3.  What  elements  are  necessary  to  constitute  an  attempt  to 
commit  a  crime? 

(1)  There  must  be  some  act  "  done  in  part  execution  of  a  design  to 
commit  a  crime."  The  "  design  "  or  criminal  intent  is  necessary, 
and  the  act  which  constitutes  an  attempt  must  be  distinguished 


154  QUESTIONS  AND  ANSWEKS. 

from  acts  which  are  merely  those  of  preparation.  Smith  v.  Com- 
monwealth, 54  Penn.  St.  209,  212. 

(2)  The  means  adopted  must  be  reasonably  calculated  to  the 
perpetration  of  the  crime.  Respublica  v.  Malin,  1  Ball.  (Penn.)  33. 
But  it  is  not  necessary  that  the  person  should  have  the  absolute 
power  of  completing  the  criminal  design. 

Thus,  where  by  a  statute,  stealing  a  sum  less  than  $10  was 
only  a  misdemeanor,  A.  broke  and  entered  B.'s  house  in- 
tending to  steal  all  the  money  in  the  safe.  There  was  less  than 
ten  dollars  in  the  safe  at  the  time,  but  A.  was  held  to  be  guilty  of 
burglary.  He  intended  to  steal  all  that  the  safe  contained,  without 
knowing  how  much  there  was.  Harvick  v.  State,  49  Ark.  514. 
So,  also,  an  attempt  to  pick  an  empty  pocket  is  criminal,  though 
there  is  no  power  of  actually  taking  property.  People  v.  Jones, 
46  Mich.  441.  See  also  People  v.  Moran,  123  N.  Y.  254. 

In  People  v.  Moran  (supra),  at  p.  257,  the  law  in  regard  to  an  at- 
tempt was  well  expressed  by  Ruger,  Ch.  J.:  "  Whenever  the  animo 
fnrandi  exists,  followed  by  acts  apparently  affording  a  prospect  of 
success,  and  tending  to  render  the  commission  of  the  crime  effec- 
tual, the  accused  brings  himself  within  the  letter  and  intent  of  the 
statute.  *  *  *  The  question  whether,  an  attempt  to  com- 
mit a  crime  has  been  made  is  determinable  solely  by  the  condition 
of  the  actor's  mind  and  his  conduct  in  the  attempted  assumption 
of  his  design."  And  his  act  is  not  the  less  criminal  nor  the  less 
deserving  of  punishment  for  the  public  protection,  because  the  ac- 
cused fails  to  accomplish  his  crime  "  for  some  cause  not  previously 
apparent  to  him." 

4.  What  will  constitute  a  justification  of  acts,  which  would 
ordinarily  be  criminal? 

(1)  The  acts  may  be  done  in  the  execution  of  proper  authority, 
as  the  hanging  of  a  murderer  by  a  sheriff,  and  even  a  private  per- 
son may  at  times  be  justified  in  taking  life,  as  in  preventing  the 
escape  of  a  felon.     1  East,  P.  C.  298. 

(2)  Public  policy  may  demand  the  acts,  as  the  destruction  of 
property  during  a  conflagration.    Cooley  on  Constitutional  Limita- 
tions (6th  ed.),  739. 

(3)  The  acts  may  be  done  in  the  lawful  defense  of  person  or 
property.     Regina  v.  Rose,  15  Cox  C.  C.  540. 

(4)  It  has  been  argued  that  necessity  would  be  a  justification,  as 
where  one  pushes  another  from  a  plank  to  prevent  both  from 
drawning.     U.  S.  v.  Holmes,  1  Wall.  Jr.  (U.  S.)  1     But  it  is  very 
questionable  how  far  a  man  may  legally  make  another  suffer  what 
he  himself  wishes  to  avoid,  merely  because  of  his  superior  strength. 
Steph.  Dig.  Cr.  L.,  art.  32.     And  it  has  been  specifically  held  that 
shipwrecked  sailors  may  not  kill  the  weakest  of  their  number, 
though  that  was  the  only  way  to  preserve  their  lives.     Reg.  v. 
Dudley,  14  Q.  B.  Div.  273. 


CRIMINAL  LAW.  Io5 

5.  What  are  tlie  three  classes  of  crimes  and  how  are  they  dis- 
tinguished? 

Crimes  are  classified  as  treasons,  felonies,  and  misdemeanors. 

Treason  is  marked  by  active  disloyalty  against  the  State. 

Felonies  are  distinguished  by  their  punishment  and  are  all  those 
offenses  which  are  punished  by  death  or  by  confinement  in  the 
State  prison.  1  Bish.  Cr.  Law,  §  618.  An  act  which  was  a  felony 
at  common  law,  unless  some  statute  has  provided  otherwise,  is  still 
regarded  as  a  felony  in  all  the  States,  with  the  possible  exception 
of  Vermont.  State  v.  Scott,  24. Vt.  127,  130. 

Misdemeanors  include  all  other  crimes  of  whatever  degree  or 
character.  Walsh  v.  People,  65  111.  58,  60;  1  Russell  on  Crimes  (6th 
ed.),  193. 

6.  How  are  criminals  classed? 

Criminals  are  divided  into  principals  and  accessories. 

Principals  have  been  divided  into  those  of  the  first  degree  who 
actively  commit  the  crime,  and  those  of  the  second  degree  who, 
though  present  and  encouraging  the  commission  of  the  crime,  do 
not  actually  participate  in  the  act.  This  distinction  has,  however, 
become  practically  obsolete  in  many  of  the  States.  1  Bish.  Cr. 
Law  (7th  ed.),  §  648. 

Accessories  are  divided  into  two  classes  —  those  before  and  those 
after  the  fact.  An  accessory'  before  the  fact  is  one  who,  without 
being  present,  aiding  or  abetting,  procures,  advises  or  commands 
another  to  commit  the  crime.  4  Shars.  Black.  Com.  37.  An  ac- 
cessory after  the  i'act  is  one  who,  knowing  that  a  felony  has  been 
committed,  receives,  relieves,  comforts  or  assists  the  felon.  4  Shars. 
Black.  Com.  38.  This  distinction  is  confined,  however,  to  felonies; 
all  parties  in  misdemeanors  and  treason  are  treated  as  principals. 
Ward  v.  People,  6  Hill  (X.  Y.),  144;  Commonwealth  v.  McAtee,  8 
Dana  (Ky.),  28. 

To  be  held  as  an  accessory  after  the  fact,  the  defendant  must  be 
actually  rendering  personal  assistance  to  the  felon.  Mere  pres- 
ence is,  of  course,  not  enough.  U.  S.  v.  Jones,  3  Wash.  C.  C. 
209,  223;  People  v.  Cook,  5  Parker  Cr.  Rep.  (N.  Y.)  351. 

7.  A.,  standing  in  Massachusetts,  shoots  at  and  wounds  B.  in 
Connecticut,  and  B.  dies  of  the  wounds  in  New  York.      ]Yhich 
State  has  jurisdiction  to  punish  the  crime? 

Connecticut  would  have  jurisdiction.  The  place  where  the  pub- 
lic is  injured  is  where  the  act  takes  effect  and  not  where  the  shot 
is  fired.  Commonwealth  v.  Macloon,  101  Mass.  1,  6.  Nor  where 
the  person  dies.  U.  S.  v.  Guiteau,  1  Mackey  (D.  C.),  498. 


156  QUESTIONS  AND  ANSWERS. 

8.  A.  steals  goods  in  X.  county  and  carries  them  into  Y. 
county.     Can  he  be  indicted  in  Y.  county? 

Yes.  It  has  been  argued  that  there  is  a  continuing  trespass, 
and  so  a  new  taking  in  every  jurisdiction  into  which  the  goods  are 
taken.  Commonwealth  v.  Uprichard,  3  Gray  (Mass.),  434,  438. 
The  better  explanation,  however,  is  probably  historical.  May's 
Criir.  L.  (2d  ed.),  §  80. 

This  principle  of  a  continuing  trespass  has  also  been  applied  to 
the  case  of  goods  stolen  in  one  State  <and  carried  into  another. 
Commonwealth  v.  Holder,  9  Gray  (Mass.),  7.  Or  stolen  in  a  for- 
eign country.  State  v.  Underwood,  49  Me.  181.  In  other  States, 
however,  the  contrary  view  is  held,  more  correctly,  it  would  seem. 
Stanley  v.  State,  24  Ohio  St.  166,  cases  collected;  Commonwealth 
v.  Pritchard,  3  Gray  (Mass.),  434,  438. 

9.  A.  utters  counterfeit  United  States  notes  in  New  York. 
Where  may  he  be  punished? 

He  has  committed  a  crime  against  both  the  State  and  the  Federal 
government,  and  may  be  punished  by  both.  Under  our  system 
there  is,  frequently,  concurrent  jurisdiction.  Fox  v.  Ohio,  5  How. 
(U.  S.)  410.  See  also  Phillips  v.  People,  55  111.  429. 

II.     OFFENSES  AGAINST  THE  GOVERNMENT. 

a.  Bribery. 

10.  A.  agrees  to  vote  for  B.  for  one  public  office  in  consider- 
ation ihat  B.  will  vote  for  him  for  another  office.      Has  any 
criminal  offense  been  committed? 

Yes.  Both  A.  and  B.  are  guilty  of  bribery.  That  crime  con- 
sists in  "  corruptly  offering,  soliciting  or  recovering  any  undue  re- 
ward as  the  consideration  for  the  discharge  of  a  public  duty." 
"  By  undue  reward  is  meant  any  pecuniary  advantage,  direct  or 
indirect,  beyond  that  naturallv  attached  to  or  growing  out  of  the 
discharge  of  the  duty."  May's  Crim.  L.  (2d  ed.),  §  140.  Strictly 
speaking,  the  offering  or  soliciting  of  a  bribe  is  only  an  attempt, 
but  both  have  long  been  treated  as  bribery.  Walsh  v.  People,  65 
111.  58. 

The  theory  is  that  any  conduct',  which  tends  to  induce  a  man  to 
administer  a  public  office  for  other  than  the  public  good,  is  an  offense 
against  the  public.  Trist  v.  Child,  21  Wall.  (U.  S.)  441. 

b.  Perjury. 

11.  What  is  perjury? 

"  Perjury,  by  the  common  law,  seemeth  to  be  a  wilful  false  oath, 
by  one  who,  being  lawfully  required  to  depose  the  truth  in  any  pro- 
ceeding in  a  course  of  justice,  swears  absolutely,  in  a  matter  of 


CRIMINAL  LAW.  157 

some  consequence,  to  the  point  in  question,  whether  he  be  believed 
or  not."  1  Hawk.  P.  C.  (8th  ed.)  429;  Commonwealth  v.  Pollard, 
12  Met.  (Mass.)  225-228. 

The  oath  must  be  required  by  law,  or  a  false  oath  Is  not  perjury; 
and  when  so  required,  the  oath  must  be  administered  by  an  authorized 
person,  or  it  is  extra-judicial.  State  v.  Wyatt,  2  Hayw.  (N.  C.)  219; 
•Commonwealth  v.  Pickering,  8  Gratt.  (Va.)  628. 

"  Judicial  proceeding  "  includes  the  main  action,  and  all  subsidiary 
proceedings  which  are  incidental,  as  an  affidavit  initiatory  of  a  pro- 
ceeding. Carpenter  v.  State,  5  Miss.  163;  or  in  aid  of  one  pending; 
White  v.  State,  9  Miss.  149;  or  on  a  motion  for  a  new  trial.  State  v. 
Chandler,  42  Vt.  446. 

The  oath  must  be  wilfully  false,  and  if  so,  it  is  immaterial  whether 
the  witness  testifies  under  compulsion  or  voluntarily,  as  when  he  vol- 
untarily gives  privileged  testimony.  Commonwealth  v.  Knight,  12 
Mass.  273;  Mackin  v.  People,  115  111.  312.  Swearing  to  the  truth  of  a 
fact,  according  to  the  affiant's  knowledge  and  belief,  is  also  perjury, 
if  he  knows  to  the  contrary,  or  if  he  believes  to  the  contrary,  even 
though  the  fact  be  true.  United  States  v.  Shellmire,  1  Bald.  C,  C.  370, 
378. 

That  is  material,  which  tends  to  prove  or  disprove  any  fact  in  issue, 
although  it  may  only  be  an  incidental  fact  Commonwealth  v.  Grant, 
116  Mass.  17;  State  v.  Norris,  9  N.  H.  96,  100. 

c.     Contempt  of  Court. 

12.  What  constitutes  contempt  of  court,  and  is  it  technically  a 
crime? 

A  court  is  held  in  contempt  when  its  rules  are  violated,  its  au- 
tLority  defied,  or  its  dignity  offended,  whereupon  the  offender  may 
be  summarily  punished  by  the  court,  without  indictment.  Con- 
tempt is  not,  strictly  speaking,  a  crime,  but  is  treated  as  a  breach 
of  order  or  decorum.  Ex  parte  Robinson,  19  Wall.  (U.  S.)  505. 
Not  being  a  crime,  a  party  accused  of  contempt  is  not  entitled  to  a 
trial  by  jury.  In  re  Deaton,  105  N".  C.  59,  64.  Contempt  is,  how- 
ever, substantially  a  crime,  as  it  is  punishable  by  fine  and  imprison- 
ment. 

13.  How  is  an  offender  proceeded  against  for  contempt  of 
court? 

If  the  contempt  be  committed  in  the  presence  of  the  court,  the 
offender  may  be  ordered  into  custody  and  proceeded  against  at 
once,  but  if  the  offense  is  not  so  committed,  the  usual  manner  of 
proceeding  is  upon  an  order  to  show  cause  why  the  offender  should 
not  be  punished.  May's  Grim.  L.  (2d  ed.),  §  158;  People  v.  Kelly, 
24  X.  Y.  74. 


158  QUESTIONS  AND  ANSWERS 

III.     OFFENSES   AGAINST   THE    PUBLIC   PEACE,    HEALTH    ANI> 

ECONOMY. 
a.    Affray. 

14.  What  constitutes  an  affray? 

An  affray  is  the  fighting  of  two  or  more  persons  in  some  public 
place,  to  the  terror  of  the  people.  4  Shars.  Black.  Com.  *p.  145. 

The  place  must  be  a  public  one,  that  is,  where  the  public  may  wit- 
ness the  breach  ot  the  peace.  Garwile  v.  State,  35  Ala.  392.  But 
actual  fear  need  not  be  excited  among  the  onlookers.  It  is  enough 
if  the  conduct  of  the  accused  be  calculated  to  excite  fear. 

One  defending  himself  from  attack,  however,  is  never  guilty  of  any 
offense.  Klurn  v.  State,  1  Blackf.  (Ind.)  377. 

b.    Riot. 

15.  What  constitutes  a  riot? 

A  riot  is  a  "  tumultuous  disturbance  of  the  peace,  by  three  or 
more  persons  assembling  together  of  their  own  authority,  with  an 
intent  to  assist  one  another  against  any  one  who  shall  oppose  them, 
in  the  execution  of  some  enterprise  of  a  private  nature,  and  after- 
wards actually  executing  the  same  in  a  violent  and  turbulent  man- 
ner, to  the  terror  of  the  people,  whether  the  act  itself  be  lawful  or 
unlawful."  1  Hawk.  P.  C.  (8th  ed.)  513,  §  1. 

The  violence  need  not  be  actually  inflicted  upon  any  person.  Threat- 
ening with  weapons,  or  even  words,  is  sufficient,  as  the  disturbance  of 
the  peace,  by  exciting  terror,  is  the  gist  of  the  offense. .  Bell  v.  Mallory, 
61  ill.  167;  State  v.  Ren  ton,  15  N.  H.  169. 

c.    Libel  and  Slander. 

16.  Define  libel  and  distinguish  it  from  slander. 

Libel  is  the  "  malicious  publication  of  any  writing,  sign,  picture, 
effigy  or  other  representation  tending  to  defame  the  memory  of  one 
who  is  dead,  or  the  reputation  of  one  who  is  living,  or  to  expose 
him  to  ridicule,  hatred  or  contempt."  May's  Grim.  L.  (2d  ed.), 
§  172.  Libel  differs  from  slander  only  in  that  the  latter  consists 
entirely  of  verbal  expressions.  Both  are  punished  criminally  on. 
account  of  their  tendency  to  lead  to  a  breach  of  the  peace.  1 
Hawk.  P.  C.  (8th  ed.).  542,  §  3;  People  v.  Croswell,  3  Johns.  Cas. 
(N.  Y.)  337. 

The  publication  need  not  be  malicious  in  the  ordinary  acceptance  of 
the  word.  If  the  act  is  done  wilfully,  the  malice  is  presumed,  as  mat- 
ter ot  law,  from  the  publication.  Commonwealth  v.  Snelling,  15  Pick. 
(Mass.)  321. 


CRIMINAL  LA\$T.  159 

The  truth  of  the  libelous  matter  is  no  defense  to  a  criminal  prosecu- 
tion, as  it  is  in  a  civil  suit.  On  the  contrary,  the  old  common-law 
maxim  was  "  the  greater  the  truth,  the  greater  the  libel,"  the  danger 
of  a  disturbance  of  the  public  peace  being  the  thing  considered.  This 
common-law  rule  has  been  modified  by  statutes  in  a  number  of  the 
States,  however;  and  in  practically  all  of  the  States  truth  is  a  de- 
fense, if  the  matter  was  published  for  a  justifiable  end,  and  with  good 
motives.  May's  Crim.  L.  (2d  ed.),  §  173. 

The  placing  of  libelous  matter  where  it  may  be  seen  by  one  or  more 
persons,  other  than  the  publisher,  is  a  publication,  and  the  act  is  in- 
dictable, whether  or  not  the  matter  is  seen.  Giles  v.  State,  6  Ga.  276. 
And  also  whether  or  not  the  matter,  as  seen,  is  understood,  as  where 
it  is  in  a  foreign  language.  Haase  v.  State,  20  Atl.  Rep.  (N.  J.)  751. 

Privileged  communications  are  not  libelous,  but  they  cannot  be  used 
as  a  cloak  for  personal  attack,  as  in  the  case  of  a  criticism  of  a  book. 
Carr  v.  Hood,  1  Camp.  354,  note. 

d.    Nuisance. 

17.  Define  nuisance. 

Nuisance  to  be  punishable  as  a  crime  must  be  something  which 
causes  inconvenience  or  injury  to  the  public.  That  is  injurious 
"  which  substantially  interferes  with  the  free  exercise  of  a  public 
right,  which  shocks  or  corrupts  the  public  morals  or  injures  the 
public  health."  May's  Grim.  L.  (2d  ed.),  §  178.  Acts  of  omis- 
sion may  equally  well  be  nuisances  as  acts  of  commission.  4  Shars. 
Black.  Com.  166,  §  5. 

Certain  acts  are  nuisances,  per  se,  as  obstruction  of  public  roads,  or 
navigable  waters,  pollution  of  streams  or  corruption  of  public  morals, 
because  they  violate  the  public  right  and  welfare.  Knox  v.  N.  Y.  City, 
55  Barb.  404;  State  v.  Taylor,  29  Ind.  517.  Other  acts,  however,  are 
nuisances  or  not,  according  10  the  attendant  circumstances.  Refineries 
or  slaughter-houses  may  be  nuisances  in  some  localities,  and  perfectly 
permissible  in  others.  Commonwealth  v.  Miller,  139  Penn.  St  77; 
Ballentine  v.  Webb,  84  Mich.  38.  It  may  also  well  happen,  that  an 
act  which  was  not  a  nuisance  at  one  time  will  become  so  by  the  in- 
crease of  population  or  other  change  of  surroundings.  Commonwealth 
v.  Upton,  6  Gray  (Mass.),  473.  The  lapse  of  time  never  gives  a  pre- 
scriptive right  against  the  State  to  maintain  a  nuisance.  The  Statute 
of  Limitations  does  not  run  against  the  State,  n,or  is  it  any  defense  that 
similar  nuisances  have  been  tolerated.  Commonwealth  v.  Perry,  139 
Mass.  198. 

e.     Conspiracy. 

18.  Define  conspiracy. 

Conspiracy  is  "  an  agreement  to  do,  against  the  rights  of  an- 
other, an  unlawful  act,  or  to  use  unlawful  means  "  (to  do  any  act). 
May's  Trim.  L.  (2d  ed.).  £§  186-187,  and  cases  cited.  The  agree- 
ment may  be  indictable  as  conspiracy,  though  the  thing  to  be  done 


160  QUESTIONS  AND  ANSWERS. 

is  not  criminal,  nor  even  indictable.    State  v.  Mayberry,  48  Me. 
218;  State  v.  Rowley.  12  Conn.  101. 

It  may  be,  however,  that  some  unlawful  acts  are  too  frivolous  to 
support  an  indictment  for  conspiracy,  but  there  is  no  rule  which  can 
be  used  as  a  guide.  Begina  v.  Kenrick,  L.  R.  5  Q.  B.  Rep.  49,  62. 

The  gist  of  the  offense  is  the  agreement,  on  the  ground  that  the 
organization  for  unlawful  purposes  is  the  dangerous  thing.  When  the 
agreement  is  made,  therefore,  the  crime  is  complete,  though  no  offense 
Is  actually  committed.  United  States  v.  Cole,  5  McLean  C.'O.  513, 
611;  State  v.  Noyes,  25  Vt  415. 

A  man  cannot  be  a  conspirator,  however,  without  an  actual  wrongful 
Intent.  For  instance,  a  man  cannot  be  deceived  into  being  a  conspira- 
tor. Rex  v.  Whitehead,  1  Car.  &  P.  67. 

19.  A.  and  B.,  as  the  result  of  a  conspiracy,  commit  a  felony. 
May  they  be  punished  for  both  the  conspiracy  and  the  crime  as 
separate  offenses?  Suppose  they  had  committed  a  misdemeanor? 

In  the  case  of  the  commission  of  a  felony  the  conspiracy  merges 
and  is  punishable  as  part  of  the  felony.  State  v.  Noyes,  25  Vt. 
415,  421;  Commonwealth  v.  Kingsbury,  5  Mass.  106.  But  see, 
contra,  State  v.  Mayberry,  48  Me.  218,  238. 

In  the  case  of  a  misdemeanor,  however,  there  is  no  merger,  and 
the  conspiracy  is  punished  separately.  People  v.  Richards,  1  Mich. 
216;  State  v.  Murray,  15  Me.  100. 

IV.     OFFENSES  AGAINST  THE  PERSON. 
a.    Assault  and  Battery. 
See  Torts,  Ques.  7-9. 
b.    Mayhem. 

20.  Define  mayhem. 

Mayhem  is  denned  by  Blackstone  as  "  the  violently  depriving 
another  of  the  use  of  such  of  his  members  as  may  render  him  the 
less  able  in  fighting,  either  to  defend  himself  or  to  annoy  his  ad- 
versary." Thus,  at  common  law,  an  injury  which  tended  only  to 
disfigure,  but  not  to  weaken,  was  not  mayhem,  as  the  cutting  off  of 
an  ear.  4  Shars.  Black.  Com.  205. 

The  offense  is  now,  however,  almost  universally  defined  by  statute, 
and  in  many  cases  disfigurement  is  included,  which  would  not  have 
come  within  the  common-law  definition.  Under  the  New  York  statute, 
the  act  must  be  premeditated  and  "  of  purpose."  Godfrey  v.  People, 
63  N.  Y.  207.  In  North  Carolina,  however,  a  preconceived  intention  to 
disfigure  need  not  be  proved.  A  prima  facie  case  is  made  by  the  proof 
of  the  disfigurement  State  v.  Girkin,  1  Ired.  121. 


CRIMINAL  LAW.  161 

c.    Homicide. 

21.  Define  homicide  and  give  its  different  degrees. 

Homicide  is  the  killing  of  a  human  being.  It  may  be  justifi- 
able, as  an  execution  by  a  sheriff,  or  a  necessary  killing  to  prevent 
the  commission  of  a  threatened  crime  of  a  violent  nature;  U.  S. 
v.  Wiltberger,  3  "\Vash.  C.  C.  515;  or  it  may  be  excusable,  as  when 
done  in  the  protection  of  one's  person.  In  such  cases  no  crime  has 
been  committed. 

Homicide,  as  a  crime,  is  either  murder  or  manslaughter,  the 
former  being  homicide  with  malice  aforethought,  and  the  latter 
without  such  malice,  as  where  one  kills  another  in  the  heat  of  pas- 
sion, or  upon  great  provocation.  Commonwealth  v.  Webster,  5 
Cush.  (Mass.)  295,  305;  Maria  v.  State,  28  Tex.  €98. 

Manslaughter  may  be  voluntary  or  involuntary,  according  as  the 
act  is  committed  with  the  design  to  kill,  or  results  from  some  un- 
lawful act,  but  without  the  intention  of  taking  life.  May's  Grim. 
L.  (2d  ed.),  §  226. 

At  common  law  there  were  no  degrees  of  murder  or  manslaugh- 
ter, but  statutes  have  been  universally  passed  making  the  punish- 
ment less  severe,  where  there  are  mitigating  circumstances. 

22.  A.,  having  determined  to  kill  B.,  sends  him  poison,  which 
is  taken  by  C.  through  mistake.      How  should  the  judge  charge 
the  jury? 

He  should  charge  the  jury,  that  if  such  facts  were  found  there 
was  conclusive  evidence  of  malice  aforethought,  the  use  of  poison 
showing  necessary  preparation;  and  that  the  malice  against  B. 
would  be  imputed  to  the  act  so  as  to  make  A.  guilty  of  the  murder 
of  C.,  though  he  might  have  been  his  best  friend.  Saunders's  Case, 
2  Plow.  473;  McGehee  v.* State,  62  Miss.  772. 

A  jury  should  also  generally  be  charged  that  the  premeditation 
which  constitutes  malice  aforethought  need  not  be  extended  over  any 
lengthy  period  of  time.  It  is  enough  that  the  purpose  should  have 
been  completely  entertained  for  however  short  a  period  before  its 
execution.  People  v.  Williams,  43  Cal.  344,  351;  Shoemaker  v.  State, 
12  Ohio  St.  43,  52.  Neither  need  a  personal  enmity  be  shown  to  prove 
malice.  It  will  be  implied  by  law,  when  the  act  is  done  without  provo- 
cation, or  in  a  deliberately  reckless  or  careless  manner.  4  Shars.  Bl. 
Com.  1GS-200. 

23.  What  will  constitute  such  a  provocation  for  homicide  as 
to  reduce  the  degree  of  the  offense  to  manslaughter? 

The  degree  of  the  offense  will  be  reduced  when  the  offender  suf- 
fered such  treatment  from  the  one  killed  as  would  have  aroused  a 
high  degree  of  passion  in  a  man  possessing  ordinary  self-control. 
Xo  words,  however,  will  be  sufficient,  nor  any  trespass  upon  land 

11 


QUESTIONS  AND  ANSWERS. 

or  goods.  And  no  provocation,  however  great,  will  reduce  the  de- 
gree of  the  offense,  unless  the  act  of  killing  is  done  under  the 
influence  of  the  passion  produced  by  that  provocation.  May's 
Crim.  L..  (2d  ed.),  §§  227-228. 

When  resisting  unlawful  arrest,  however,  it  has  been  held  in  some 
States,  that  the  taking  of  life  would  only  be  manslaughter,  though  the 
ace  was  deliberate  and  unnecessary,  and  not  done  in  the  heat  of  passion. 
Commonwealth  v.  Carey,  12  Cush.  (Mass.)  246;  Rafferty  v.  People,  69 
111.  Ill,  115.  This  doctrine,  however,  is  not  universally  approved. 
Galvin  v.  State,  6  Cold.  (Tenn.)  283,  291;  Roberts  v.  State,  14  Mo. 
138,  146. 

24.  A.  died  of  certain  injuries  inflicted  by  B.,  who  showed  on 
the  trial  that  the  injuries  would  not  have  been  fatal  had  they  been 
properly  treated.     Will  such  evidence  help  him? 

No.  The  offender  is  not  to  be  excused  in  a  criminal  prosecution 
because  the  effects  of  his  wrong  might  have  been  avoided.  Bowles 
v.  State,  58  Ala.  335;  Kee  v.  State,  28  Ark.  155,  163. 

25.  A.  inflicted  injuries  upon  B.,  of  which  he  died  after  two 
years.     Would  A.  be  guilty  of  murder  or  manslaughter? 

He  would  be  guilty  of  neither.  The  injuries  must  be  the  proxi- 
mate cause  of  the  death,  and  it  is  held  that  such  is  not  the  case,  un- 
less death  follows  within  a  year  and  a  day  after  the  injuries.  State 
v.  Shepherd,  8  Ired.  (N.  C.)  195;  People  v.  Kelly,  6  Cal.  210. 
The  time  limit  is  generally  covered  by  statute,  however. 

26.  A.  drives  his  wife  out  of  the  house,  and  she  dies  of  ex- 
posure.     Is  he  guilty  of  homicide? 

If  she  left  the  house  from  fear  of  death  or  great  bodily  harm 
and  her  fears  were  well-grounded  or  reasonable,  and  her  death  was 
the  natural  and  probable  consequence  of  leaving  the  house  at  the 
time  and  under  the  circumstances  he  is  guilty. 

The  doing  of  any  act  which  will  naturally  lead  to  death  is  mur- 
der or  manslaughter,  according  to  the  intention  with  which  it  is 
done.  Hendrickson  v.  Commonwealth,  85  Ky.  281,  286.  Crimi- 
nal carelessness  or  neglect  of  a  duty  may  also  result  in  murder  as 
well  as  affirmative  acts  of  violence.  State  v.  O'Brien,  32  N.  J.  Law, 
169;  State  v.  Hoit,  23  N.  H.  355. 

As  to  homicide  in  self-defense,  see  Torts,  Ques.  21a. 

d.    False  Imprisonment. 
See  Torts,  Ques.  37,  38. 
e.    Rapa. 

27.  Define  rape. 

Rape  is  the  unlawful  carnal  knowledge  of  a  woman  without  her 
consent.  The  act  must  be  accomplished  with  force  and  be  met 


CRIMINAL  LAW.  163 

with  such  resistance  as  to  negative  the  idea  of  consent.  Fraud  will 
not  take  the  place  of  force,  and  if  there  is  consent,  however  ob- 
tained, the  crime  is  not  rape,  if  the  woman  knows  to  what  she  is 
consenting.  McXair  v.  State,  53  Ala.  453.  Where,  however,  the 
consent  is  obtained  under  pretext  of  medical  treatment,  the  offense 
is  rape.  Regina  v.  Case,  4  Cox  C.  C.  220,  223.  But  see  Don  Moran 
v.  People,  25  Mich.  356,  contra.  The  force  which  will  negative  the 
idea  of  consent  may  be  very  slight  or  practically  absent,  if  the 
woman  is  not  capable  of  resisting  on  account  of  being  insensible  or 
asleep.  Commonwealth  v.  Burke,  105  Mass.  376;  Regina  v.  Mayers, 
12  Cox  C.  C.  311. 

f.    Kobbery. 

28.  Define  robbery. 

Robbery  is  larceny  from  the  person  or  personal  presence  and 
protection,  with  the  added  element  that  the  crime  is  executed  by 
force  or  by  putting  in  fear.  Commonwealth  v.  Humphries,  7  Mass. 
242;  Commonwealth  v.  Holland,  1  Duv.  (Ky.)  182.  The  force 
or  fear  must  be  the  means  by  which  the  crime  is  accomplished,  and 
must  be  prior  to  or  simultaneous  with  it.  Thomas  v.  State,  91  Ala. 
34.  It  is  also  necessary  that  the  force  be  used  with  the  intention 
of  accomplishing  the  larceny.  Regina  v.  Edwards,  1  Cox  C.  C.  32. 
•  For  the  general  principles  of  larceny,  see  infra,  Ques.  37  et  seq. 

V.     OFFENSES  AGAINST  THE  DWELLING-HOUSE. 
a.    Arson. 

29.  Define  arson. 

Arson  is  the  malicious  burning  of  another's  dwelling-house. 
May's  Crim.  L.  (2d  ed.),  §  250. 

30.  A.  sets  fire  to  his  own  house  when  B.'s  house  was  so  near 
that  the  fire  would  naturally  spread  to  it.      If  B.'s  house  burns, 
is  A.  guilty  of  arson?  • 

Yes.  Simply  burning  one's  own  house  is  no  offense  at  common 
law,  if  innocent  Bloss  v.  Tobey,  2  Pick.  (Mass.)  320;  but  where 
•the  destruction  of  B.'s  house  is  a  result  which  would  naturally 
follow  from,  A.'s  act,  he  is  guilty  of  arson.  Rex  v.  Isaac,  2  East 
P.  C.  1031.  The  only  malice  necessary  is  an  intention  to  burn. 
Thus,  the  crime  is  complete,  when  one  intending  to  burn  A.'s 
house  sets  fire  to  B.'s  house  by  mistake.  1  Hale,  P.  C.  569;  May's 
Crim.  L.  (2d  ed.),  §  254. 

31.  A.  intentionally  burns  the  house  of  which  he  is  lessee.     Is 
he  guilty  of  arson? 

No.  For  the  purposes  of  the  crime,  a  man  is  burning  his  own 
house,  if  he  has  the  right  of  present  possession.  He  need  not  be 
the  holder  of  the  title;  it  is  enough  that  he  is  the  rightful  occu- 


QUESTIONS  AND  ANSWERS. 

pant,  as  the  gist  of  the  offense  is  the  violation  of  the  sanctity  of 
another's  abode.  State  v.  Lyon,« 12  Conn.  487;  McXeal  v.  Woods, 
3  Blackf.  (Ind.)  485,  486;  State  v.  Toole,  29  Conn.  342. 

By  statute,  however,  in  some  States,  the  wilful  burning  of  any  build- 
ing is  made  punishable,  whether  the  act  be  committed  by  the  owner  or 
not  State  v.  Hurd,  51  N.  H.  176;  Shepherd  v.  People,  19  N.  Y.  537. 

32.  A.  sets  fire  to  a  stable  in  which  the  coachman  lives.    What 
is  the  offense? 

The  offense  is  arson.  Any  building  is  a  dwelling-house,  within 
the  definition  of  the  offense,  which  is  actually  occupied  as  such, 
though  it  may  not  have  been  erected  for  that  purpose,  and  may 
also  be  used  for  other  purposes,  as  for  a  jail.  People  v.  Cotteral;  18 
Johns.  (N.  Y.)  115,  120;  Smith  v.  State,  23  Tex.  App.  357.  But 
compare  Jenkins  v.  State,  53  Ga.  33,  where  it  is  said  that  there  is 
no  intention  to  burn  the  jail,  but  to  burn  a  hole,  through  which 
to  escape. 

The  occupant  need  not  be  actually  in  the  building  when  it  is  set  on 
fire,  but  it  must  be,  in  a  real  sense,  occupied.  State  v.  Toole,  29  Conn. 
342.  Mere  ownership,  though  combined  with  the  intention  to  occupy, 
is  not  enough. .  Hoouer  v.  Commonwealth,  13  Gratt.  (Va.)  763;  State  v. 
TVarren,  33  Me.  30. 

The  burning  necessary  for  arson  must  be  an  actual  combustion.  It 
Is  sufficient  if  the  wood  be  charred,  though  not  enough,  if  only  scorched. 
May's  Crim.  L.  (2d  ed.),  §  255. 

b.    Burglary. 

33.  Define  burglary. 

Burglary  is  the  breaking  and  entering  of  another's  dwelling- 
house  in  the  night-time,  with  the  intent  to  commit  a  felony 
therein,  whether  the  felonious  intent  be  executed  or  not.  1  Hawk. 
P.  C.  (8th  ed.),  129. 

34.  A.,  finding  the  shutters  and  window    of  B.'s  house  open, 
enters  to  commit  a  felony.      Finding  the  door  of  an  inner  room 
locked,  he  breaks  it  open.      Would  this  be  a  sufficient  breaking  to 
make  the  offense  burglary? 

Yes.  The  breaking  of  an  inner  door,  even  after  entry  into  the 
house,  is  sufficient  for  the  offense.  State  v.  Scripture,  42  N.  H. 
485;  Holland  v.  Commonwealth,  85  Penn.  St.  66,  71.  It  would  not 
be  burglary,  however,  if  A.  had  simply  broken  open  a  chest,  cup- 
board, clothes-press,  or  other  movable  piece  of  furniture  not  part 
of  the  house.  State  v.  Wilson,  Coxe  (X.  J.),  439. 

The  mere  entering  through  the  open  window,  was  not  a  breaking.  To 
constitute  burglary,  the  breaking  must  be  actual.  Very  little  force  is 


CRIMINAL  LAW.  165 

required,  however,  and  sliding  a  bolt  or  tearing  a  netting  which  cov- 
ered an  open  window  is  sufficient.  State  v.  O'Brien,  81  Iowa,  93;  Com- 
monwealth v.  Stephenson,  8  Pick.  354.  But  the  window  or  door  must 
not  be  so  carelessly  left  open,  as  to  invite  an^ntry,  and  it  would  be 
held  to  be  such  an  invitation  if  the  window  had  been  left  only  slightly- 
open,  so  that  it  must  be  pushed  farther  up  to  admit  of  entry.  Com- 
monwealth v.  Strupney,  105  Mass.  588;  McGrath  v.  State,  25  Neb.  780. 
A  breaking  out  of  the  house,  however,  to  escape,  would,  probably,  not 
be  held  burglary  anywhere.  May's  Crim.  L.  (2d  ed.),  §  262. 

There  may  also  be  a  constructive  breaking,  where  fraud,  or  threats 
are  substituted  for  force.  Entry  by  conspiracy  with  persons  within 
the  house  is  burglary.  State  v.  Howe,  98  N.  C.  629. 

35.  After  opening  a  window,  A.  obtains  possession  of  goods 
by  means  of  a  long  hook.      Has  there  been  an  entry  of  the 
building? 

Yes.  When  the  hand  or  any  implement  passes  within,  for  the 
purpose  of  committing  the  intended  felony,  there  is  an  entry.  It 
is  not  enough,  however,  if  the  implement  is  simply  used  for  the 
purpose  of  breaking.  May's  Crim.  L.  (2d  ed.),  §  263. 

36.  A.  breaks  into  B.'s  house  at  four  o'clock  p.  m.,  with  the  in- 
tention of  examining  some  private  documents  of  B.'s.     Would 

the  offense  be  burglary? 

Xo.  The  offensa  would  not  be  burglary  for  two  reasons:  First, 
the  breaking  must  be  in  the  night-time  to  constitute  burglary  — 
that  is,  broadly  speaking,  from  sunset  to  sunrise,  though  some 
States  have  fixed  the  time  differently  by  statute.  In  Massachu- 
setts "  night-time  "  is  denned  to  be  from  one  hour  after  sunset  to 
one  hour  before  sunrise.  Commonwealth  v.  Williams,  2  Gush. 
(Mass.)  582,  589. 

•  Second,  to  constitute  burglary  the  breaking  must  be  with  the 
intent  to  commit  a  felony,  and  an  intent  to  commit  a  misdemeanor 
will  not  be  sufficient.  Thus,  if  one  break  and  enter  with  the  in- 
tent to  commit  adultery,  the  offense  would  or  would  not  be 
burglary,  according  as  the  jurisdiction  might  hold  adultery  to  be 
a  felony,  misdemeanor  or.  as  in  some  States,  no  crime  at  all.  State 
v.  Cooper,  16  Yt.  551;  Commonwealth  v.  Newell,  7  Mass.  245. 

The  crime  of  burglary  has  been  very  generally  extended,  frequently 
covering  offenses  committed  by  day  as  well  as  by  night,  and  in  most 
jurisdictions  it  is  a  crime  to  break  and  enter  any  building,  for  the 
purpose  of  committing  a  felony  therein.  May's  Ci*im.  L.  (2d.  ed.), 
§  268. 

The  question  of  what  constitutes  a  dwelling-house  is  the  same  in 
burglary  as  in  arson.  See  ante,  Ques.  32. 


166  QUESTIONS  AND  ANSWERS. 

VI.     OFFENSES  AGAINST  PROPERTY. 
a.     Larceny. 

37.  Define  larcenm. 

Larceny  is  the  unlawful  taking  possession  of  the  personal  prop- 
erty of  another,  with  the  intent  to  steal.  4  Shars.  Black.  Com. 
229. 

38.  A.,  intending  to  steal  a  bag  of  flour,  puts  it  on  his 
shoulder,  but  is  caught  before  he  has  moved -away.     Has  there 
been  a  sufficient  taking  possession  of  the  flour  to  constitute  lar- 
ceny?   Suppose  he  had  only  stood  the  bag  on  end? 

The  taking  possession  must  be  actual  so  that  the  thief  has  the 
real  possession  and  control,  but  his  possession  need  only  be  for  an 
instant,  and  there  would  be  a  sufficient  taking  of  possession  where 
the  bag  was  put  upon  the  shoulder.  State  v.  Craig,  89  N.  C.  475; 
State  v.  Gazell,  30  Mo.  92;  Rex  v.  Walsh,  1  Moody  Cr.  C.  14;  Rex  v. 
Pitman,  2  Car.  &  P.  423. 

So,  If  money  in  a  person's  pocket  be  actually  lifted  in  the  hand  of  a 
thief,  the  taking  possession  is  sufficient,  even  though  the  money  is 
dropped  again  and  never  actually  removed  from  the  pocket  Harrison 
v.  People,  50  N.  Y.  518;  Eckles  v.  State,  29  Ohio  St.  508. 

Where,  however,  the  bag  is  only  set  on  end,  preparatory  to  taking 
away,  there  is  not  such  a  taking  possession  as  will  constitute  lar- 
ceny. State  v.  Jones,  65  N.  C.  395. 

39.  A.,  by  a  fraudulent  representation,  has  the  possession  of 
certain  goods  given  to  him.     Is  he  guilty  of  larceny? 

Yes.  Though  possession  here  is  actually  given,  it  is  held  that 
the  fraud  which  induced  the  giving  of  possession  is  equivalent  to 
the  trespass  which  is  usually  necessary  to  constitute  the  crime  of 
larceny.  The  offense  is  recognized  as  larceny  by  trick.  Regica 
v.  Bunce,  1  Fost.  &  F.  523;  Eegina  v.  Buckmaster,  16  Cox  C.  C.  339. 

Where,  however,  the  fraud  lends  the  owner  to  confer  title  upon  the 
thief,  his  taking  of  possession  is  not  larceny.  If  the  owner  intended 
to  pass  title,  and  the  thief  intended  to  take  it,  no  fraud  will  prevent 
its  passing,  as  it  is  simply  a  question  of  intention,  and  when  title  has 
been  given,  the  holder  cannot  be  regarded  as  committing  larceny,  when 
he  takes  possession.  His  own  goods  cannot  be  the  object  of  his  tres- 
pass. 2  Bishop  on  Criminal  Law  (7th  ed.),  §§  808-812. 

40.  A.  asks  to  examine  a  watch,  which  is  handed  over  the 
counter  to  him,  and  he  runs  off  with  it.      Was  he  given  posses- 
sion so  that  the  offense  is  not  larceny? 

No.  There  is  a  distinction  to  be  noted  between  possession  and 
mere  custody.  Where  the  owner  of  property  hands  it  to  another 


CRIMINAL  LAW.  167 

for  a  specific  purpose  to  be  carried  out  under  the  owner's  own  in- 
spection, possession  does  not  pass,  but  mere  custody,  and  the 
owner  still  has  possession.  When  the  thief  ran,  therefore,  the  pos- 
session was  taken  and  the  offense  was  larceny.  People  v.  Call,  1 
Den.  (N.  Y.)  120;  Commonwealth  v.  O'Malley,  97  Haas.  584. 

41.  A.  leaves  part  of  his  goods  ivith  his  servant  and  others 
u'ith  a  bailee.     Both  appropriate  the  goods.     Are  both  offenses 
larceny? 

Xo.  Only  the  servant  has  committed  larceny.  The  delivery  of 
goods  to  a  bailee  passes  possession,  but  owing,  probably,  to  the  his- 
torical idea  of  slaves,  it  is  held  that  when  a  master  gives  property 
to  his  sen-ant,  the  latter  only  obtains  custody,  and  that  possession 
is  still  in  the  master,  and,  therefore,  the  taking  by  the  servant  is  a 
taking  of  possession,  and  so  is  larceny.  Commonwealth  v.  Berry, 
99  Mass.  428;  People  v.  Belden,  37  Cal.  51. 

If,  however,  the  servant  is  given  goods  by  a  third  person  for  his 
master,  he  does  get  possession,  and  an  appropration  by  him  Is  not 
larceny.  Regina  v.  Masters,  1  Den.  Cr.  Cas.  332.  One  servant,  however, 
who  has  only  custody,  cannot  give  possession  to  a  fellow-servant. 
Only  custody  passes.  Rex  v.  Murray,  1  Moody  Cr.  Cas.  276;  May's 
Crim.  L.  (2d  ed.),,  §  283. 

42.  A.  finds  a  bag  in  the  road,  which  has  been  dropped  from 
a,  wagon,  to  which  a  tag  is  attached.     He  tears  off  the  tag  with- 
out looking  for  the  name  and  appropriates  the  bag.     Is  the  act 
larceny?     Suppose  there  had  been  no  tag? 

The  taking  of  the  bag,  with  the  tag  attached,  would  be  larceny. 
In  spite  of  the  fact  that  the  bag  was  actually  lost,  when  a  finder 
takes  possession  of  an  article  with  a  clue  to  it,  and  with  the  inten- 
tion to  appropriate  it  regardless  of  the  fact  that  the  owner  might 
be  found,  it  is  held  to  be  a  taking  within  the  definition  of  larceny. 
Reed  v.  State,  8  Tex.  App.  40;  Commonwealth  v.  Titus,  116 
Mass.  42. 

If  there  had  been  no  tag,  the  bag  would  have  been  without  clue, . 
and  the  act  would  not  have  been  criminal.     Regina  v.  Thurborn,  1 
Den.  Cr.  Cas.  387. 

43.  A  storekeeper  finds  a  purse  upon  his  counter,  which  has 
been  left  by  mistake.      A  thorough  examination  of  it,  however, 
fails  to  reveal  the  identity  of  its  owner.     Is  his  appropriation 
larceny? 

Yes.  In  such  a  case  the  property  cannot  be  treated  as  lost,  for 
at  the  time  of  appropriation  there  was  a  probability,  known  to  the 


168  QUESTIONS  AND  ANSWERS. 

offender,  that  the  owner  would  return  and  claim  the  purse.  Law- 
rence v.  State,  1  Humph.  (Tenn.)  228;  Regina  v.  West,  6  Cox  C.  d 
415. 

In  every  case,  however,  the  intention  to  appropriate  must  be  present 
at  the  time  of  finding,  otherwise  there  is  no  wrongful  taking  of  pos- 
session. Baker  v.  State,  29  Ohio  St  184;  Reed  v.  State,  8  Tex.  App.  40. 


44.  Define  personal  property  within  the  meaning  of  the  defini- 
tion of  larceny. 

Personal  property  means  such  property  as  may  be  described  as 
"  goods  and  chattels."  As  soon  as  property  becomes  a  chattel,  and 
as  long  as  it  remains  so,  it  is  the  subject  of  larceny.  Thus,  milking 
a  cow,  shearing  a  sheep,  or  taking  turpentine  from  a  tree  may  be 
larceny.  State  v.  Moore,  11  Ired.  (N.  0.)  70.  A  dead  body  is  not 
considered  property,  though  gravecloth.es  are.  2  East  P.  C.  65i; 
Wonson  v.  Sayward,  13  Pick.  (Mass.)  402.  Deeds,  promissory 
notes,  and  such  papers  were  held  not  to  be  subjects  of  larceny  at 
common  law.  Their  character,  as  a  chattel,  was  considered  to  be 
merged  in  their  more  important  character  of  written  obligations- 
Payne  v.  People,  6  Johns.  (N.  Y.)  103;  U.  S.  v.  Davis,  5  Mason 
C.  C.  356.  When,  however,  the  written  obligation  is  inope- 
rative, as  a  canceled  check,  it  is  then  mere  paper,  and,  therefore,  a 
subject  of  larceny.  Eegina  v.  Watts,  4  Cox  C.  C.  336.  The  com- 
mon-law rule  has  been  modified  by  statute,  however,  in  almost 
every  jurisdiction,  and  written  instruments  are  regularly  consid- 
ered subjects  of  larceny.  May's  Grim.  L.  (2d  ed.),  §  272. 

By  the  very  definition  of  the  offense,  the  subject  of  larceny  must 
be  a  chattel,  and  so  there  can  be  no  larceny  of  real  estate.  Rex  v. 
Webster,  1  Leach  C.  C.  (4th  ed.)  12.  When,  however,  portions  of 
the  realty  are  severed  so  as  to  become  chattels,  they  become  sub- 
jects of  larceny  after  they  have  once  come  into  the  possession  of  the 
owner.  If,  however,  the  severance  and  the  taking  away  constitute 
one  and  the  same  act,  the  offense  is  only  a  trespass,  as  the  owner 
has  never  had  possession  of  the  chattel.  State  v.  Hall,  5  Harr. 
(Del.)  492;  Regina  v.  Townley,  12  Cox  C.  C.  59. 

Wild  animals,  in  a  state  of  nature,  are  not  subjects  of  larceny,, 
though  they  may  be  when  shot  and  reduced  into  possession.  Dogs, 
cats  and  the  like  were  not  considered  property  under  the  common 
law,  and  are  not  to-day  subjects  of  larceny  in  this  country,  except 
by  statute.  4  Shars.  Black.  Com.  236;  Ward  v.  State,  48  Ala.  161. 

The  chatte).  to  be  the  subject  of  larceny  must  also  have  some 
value,  or  it  cannot  be  regarded  as  property.  The  value  may  be 
trifling,  but  must  be  appreciable.  Payne  v.  People,  6  Johns.  (N.  Y.) 
103;  People  v.  Wiley,  3  Hill  (N.  Y.),  194,  211. 


CRIMINAL  LAW.  169 

45.  A.  owns  property  which,  however,  has  been  attached  for 
the  benefit  of  a  creditor.     A.   takes  the  property  away  with 
intent  to  deprive  the  creditor  of  his  lien.     What  is  the  offense? 

The  offense  is  larceny.  A.  had  no  right  to  the  possession  of  the 
property,  and  for  certain  purposes  the  property  was  that  of  the  at- 
taching creditor.  Commonwealth  v.  Greene,  111  Mass,  392;  Peo- 
ple v.  Thompson,  34  Cal.  671. 

46.  A.  takes  goods  from  her  husband's  house  previous  to  elop- 
ing with  another  man.      Is  the  offense  larceny? 

No.  By  the  common-law  principles  a  wife  cannot  have  posses- 
sion of  property  apart  from  her  husband;  in  law  they  are  one 
person.  Regina  v.  Kenny,  2  Q.  B.  Div.  307;  Rex  v.  Wills,  1 
Moody,  Cr.  C.  375. 

47.  A.  takes  B.'s  hat  for  the  purpose  of  inducing  B.  to  follow 
him.      Is  the  offense  larceny? 

No.  By  the  definition,  the  taking  of  the  property  must  be  with 
the  intent  to  steal,  i.  e.,-  to  permanently  deprive  the  possessor  of 
property  or  of  his  interest  in  it.  If  the  purpose  of  the  offender  i& 
only  to  make  a  temporary  use  of  the  chattel,  the  offense  is  not  lar- 
ceny. Rex  v.  Dickinson,  Russ.  &  Ry.  420.  But  taking  prop- 
erty with  the  intent  to  keep  it  until  a  reward  is  offered  is  larceny. 
Berry  y.  State,  31  Ohio  St.  219;  Commonwealth  v.  Mason,  105 
Mass.  163. 

It  Is  also  necessary  that  the  Intent  to  steal  be  present  at  the  time 
of  taking,  as  in  the  case  of  finding  goods  (see  Ques.  43,  supra),  other- 
wise there  is  no  larceny.  A  taking  without  a  fraudulent  intent,  and  a 
fraudulent  conversion  afterwards,  will  not,  in  general,  constitute  lar- 
ceny. Wilson  v.  People,  39  N.  Y.  459;  State  v.  Shermer,  55  Mo.  83.  In 
some  cases,  however,  it  has  been  held,  that  while,  if  the  original  taking 
be  rightful,  a  fraudulent  conversion  later  will  not  be  larceny,  yet  if  the 
original  taking  be  wrongful,  as  by  trespass,  it  will  be,  though  the 
wrong  did  not  consist  in  an  intent  to  steal.  Commonwealth  v.  White, 

11  Cush.  (Mass.)  483;  State  v.  Coombs,  55  Me.  477. 

48.  A.,  on  trial  for  larceny,  shows  that  the  goods  which  he 
took  were  of  no  advantage  to  him,  and  were  not  taken  with  the 
expectation  of  personal  gain.     Is  that  a  defense? 

No.  Though  it  was  once  laid  down  that  such  an  offense  was 
more  properly  malicious  mischief,  it  is  now  generally  held  that 
there  need  be  no  motive  of  gain  in  order  to  convict  of  larceny. 
The  permanent  injury  to  the  owner  is  sufficient.  State  v.  Ryan, 

12  Nev.  401;  State  v.  Davis,  38  N.  J.  Law,  176.     But  see,  contra, 
Pence  v.  State,  110  Ind.  95,  99;  People  v.  Woodward,  31  Hun 
(N.  Y.),  57. 


170  QUESTIONS  AND  ANSWEHS. 

49.  Define  larceny  from  the  person  and  larceny  from  a  build- 
ing. 

Larceny  from  the  person  and  from  a  building  are  but  aggravated 
forms  of  larceny,  of  statutory  growth  and.  as  far  as  the  larceny  is 
concerned,  subject  to  the  regular  tests. 

Larceny  from  the  person  is  a  taking  from  the  personal  protec- 
tion, with  force.  The  mere  force  of  the  taking  is  enough,  and  it 
differs  from  robbery  in  that  the  assault  of  the  latter  offense  is  prior 
to  and  in  aid  of  the  larceny.  Thus,  if  A.  scratches  B.'s  watch  in 
taking  it,  the  offense  is  larceny  from  the  person;  if  he  knocks  B. 
down  in  order  that  he  may  steal  his  watch,  the  offense  is  robbery. 
Commonwealth  v.  Dimond,  3  Gush.  (Mass.)  235;  2  Eussell  on 
Crimes,  89. 

Larceny  from  the  building  is  committed  when  the  goods  taken 
are  under  the  protection  which  is  supposed,  by  law,  to  be  afforded 
them  by  being  kept  in  a  building. 

The  offense  of  larceny  from  a  building  Is  not  committed,  however,  if 
the  goods  are  under  the  personal  protection  of  the  owner,  though  they 
may  be  in  a  building.  In  such  a  case  the  goods  are  under  the  owner's 
protection,  rather  than  that  of  the  building.  The  house  is  not  supposed 
to  be  a  protection  against  every  one;  the  owner  of  the  house  may 
commit  larceny  in  it,  yet  the  offense  would  not  be  larceny  from  a 
building.  Commonwealth  v.  Hartnett,  3  Gray  (Mass.),  450.  So,  also 
if  the  offense  is  committed  by  the  owner's  wife.  Rex  v.  Gould,  Leach 
C.  C.  (4th  ed.)  217. 

50.  A.  steals  property  which  was  owned  in  common  by  B.  and 
C.    How  many  offenses  has  he  committed? 

Only  one.  There  is  but  one  act  which  is  criminal,  and  that  is 
an  offense  against  the  public,  not  against  A.  and  B.,  as  individuals. 
As  to  them  it  is  but  a  trespass,  and  the  allegation  of  ownership  is 
only  a  matter  of  pleading  for  the  purpose  of  identifying  the  prop- 
erty. Nichols  v.  Commonwealth,  78  Ky.  180;  Bell  v.  State,  42 
Ind.  335. 

b.     Embezzlement. 

51.  Define  embezzlement. 

Embezzlement  is  the  "  fraudulent  appropriation  of  another's 
property  bv  one  who  has  the  lawful  possession."  The  offense  is 
purely  the  result  of  statutes  which  were  passed  to  punish  persons 
for  the  appropriation  of  property  of  which  they  had  lawful  posses- 
sion, and  who  could  not,  therefore,  be  convicted  of  larceny. 

The  appropriation  must  be  fraudulent,  or  the  offense  is  not  com- 
mitted. Thus,  if  the  property  is  taken  under  the  claim  of  right,  it  Is 
not  embezzlement  Ross  v.  Innis,  35  111.  487;  Kirby  v.  Foster,  22  Ati. 
Rep.  (R.  I.)  1111,  1112. 


CRIMINAL  LAW.  171 

As  to  what  property  may  be  the  subject-matter  of  the  offense,  the 
practical  result  is  that  whatever  may  be  stolen  may  be  embezzled. 
May's  Grim.  L.  <2d  ed.),  §  303.  See  also  Ques.  44  (supra). 

The  question  of  who  has  possession,  within  the  meaning  of  the  defini- 
tion, brings  up  the  distinction  between  possession  and  cnstody  (consid- 
ered under  questions  38-42,  supra),  and  also  the  distinction  between  a 
clerk  or  servant,  and  an  agent  or  officer.  As  a  general  rule,  a  clerk 
and  a  servant  only  have  custody  of  goods  which  are  given  to  them 
b.y  their  master,  so  that  an  appropriation  by  them  is  larceny,'  whereas, 
an  agent  or  an  officer,  public  or  private,  has  possession,  and  his  offense 
would  be  embezzlement.  Where  the  line  is  to  be  drawn,  however,  be- 
tween a  servant  and  an  agent,  is  a  very  difficult  question  of  fact,  but 
perhaps  the  best  test  is  the  question  of  control.  A  master  has  full 
control  over  his  servant,  both  as  to  what  he  shall  do,  and  how  he  shall 
do  it  but  his  control  over  his  agent  does  not  extend  to  the  small  de- 
tails of  how  the  work  is  accomplished. 

52.  A.,  the  teller  of  a  bank,  enters  the  bank  after  hours  and 
appropriates  money  from  the  safe.     Is  the  offense  embezzlement? 

No.  Though  a  teller  is  an  officer  who  would,  ordinarily,  have 
lawful  possession  of  the  money,  under  the  definition  of  embezzle- 
ment, yet  his  possession  only  lasts  during  banking  hours,  and  when 
in  the  safe  the  possession  of  the  money  is  in  the  bank.  Common- 
wealth v.  Barry,  116  Mass.  1. 

53.  A.  acts  as  a  general  commission  merchant,  and  places 
all  of  the  money  which  he  collects  for  all  customers  in  one  bank 
account,  from  which  he  pays  his  own  private  creditors.      Is  he 
guilty  of  embezzlement? 

No.  Every  agent  who  appropriates  money  collected  for  others 
is  not  guilty  of  embezzlement.  The  very  business  of  a  commission 
merchant  carries  with  it  the  permission,  implied  from  the  necessi- 
ties of  the  case,  of  using  all  moneys  received  as  a  general  fund. 
Commonwealth  v.  Foster,  107  Mass.  221;  May's  Crim.  L.  (2d  ed.), 
§  301. 

Manifestly,  mere  failure  to  pay  a  loan  can  never  be  embezzle- 
ment. People  v.  Wadsworth,  63 'Mich.  500,  509. 

c.    False  Pretenses. 

54.  What  are  the  elements  of  the  crime  of  obtaining  goods  un- 
der false  pretenses? 

To  convict  a  man  of  the  crime  it  is  necessary  to  show:  (1)  That 
the  pretense  is  false;  (2)  that  there  was  an  intent  to  defraud; 
{3)  that  an  actual  fraud  was  committed;  (4)  that  the  false  pretenses 
were  made  for  the  purpose  of  perpetrating  the  fraud:  and  (5)  that 
the  fraud  was  accomplished  by  means  of  the  false  pretenses.  Com- 
mon wealth  v.  Drew,  19  Pick.' (Mass.)  179;  May's  Crim.  L.  (2d  ed.), 
§  305. 


172  QUESTIONS  AND  ANSWERS.       •  ^->- 

The  false  pretense  must  be  a  false  statement,  regarding  some  past 
or  existing  fact,  as  distinguished  from  a  promise,  an  opinion  or  a  state- 
ment about  an  event  that  is  to  take  place.  Thus,  the  ordinary  "  puff- 
Ing  "  of  goods  by  the  seller  is  not  criminal,  as  being  a  mere  expression 
of  opinion,  against  which  the  purchaser  must  guard.  Begina  v.  Bryan, 
7  Cox  C.  G.  312;  State  v.  Estes,  46  Me.  150.  The  representation  must 
be  actually  false.  It  is  not  enough  that  the  man  believed  it  to  be 
false  and  intended  to  defraud.  If  the  representation  actually  turns  out 
to  have  been  true,  he  is  not  guilty.  State  v,  Asher,  50  Ark.  427.  Ttye 
pretense  must  also  be  false  at  the  time  the  ^property  Is  obtained.  If 
true  then,  it  makes  no  difference  how  false  it; may  have  been  when 
made.  In  re  Snyder,  17  Kan.  542,  555. 

The  crime  is  one  purely  of  statutory  creation.  So  many  frauds  were 
committed,  which  could  not  come  within  the  common-law  definitions 
of  larceny,  that  the  statute  of  30  Geo.  II,  chap.  24,  was  passed  making 
the  offender  indictable  and  statutes  to  the  same  effect  are  to  be  found 
in  every  jurisdiction,  with  little,  if  any,  real  difference  in  their  pro- 
visions. 

55.  A.  went  to  a  store  wearing  a  gown  worn  only  by  certain 
college  students.    The  storekeeper  gave  him  credit,  supposing  him' 
to  be  a  student,  though  he  asked  no  questions.      Was  there  a 
sufficient  pretense  to  constitute  a  crime? 

Yes.  The  pretense  need  not  be  in  words;  acts  are  sufficient,  if 
reasonably  misleading.  Rex  v.  Barnard,  7  Car.  &  P.  784.  The 
crime  may  also  be  committed  when  all  of  the  statements  are  true,  if 
a  falsehood  is  implied,  as  where  one  sells  goods  which  do  not  be- 
long to  him.  Eegina  v.  Sampson,  52  Law.  T.  772;  State  v.  Mills,  17 
Me.  211. 

56.  A.  makes  a  false  pretense  to  get  B/s  money,  and  then  keeps 
it  in  payment  of  a  debt  which  B.  justly  owes  him.     Has  he  ob- 
tained the  money  by  false  pretenses? 

Xo.  The  second  point  of  the  definition  (Ques.  54,  supra]  is  not 
present.  There  is  no  intent  to  defraud1  in  the  criminal  sense,  aa 
the  money  was  justly  due  him.  People,  v.  Thomas,  3  Hill  (N\  Y.), 
169;  Rex  v.  Williams,  7  Car.  &  P.  354. 

57.  A.  obtains  a  promissory  note  from  B.,  a  minor,  by  false 
pretenses.     Is  his  act  criminal? 

No.  There  has  been  no  fraud  actually  perpetrated;  as  the  minor 
is  not  bound  to  pay  the  note,  it  is, 'therefore,  not  considered  as 
property.  Commonwealth  v.  Lancaster,  Thatch.  Cr.  Cas.  (Mass.) 

458. 


CRIMINAL  LAW.  173 

58.  A.  and  B.  both  make  false  pretenses  in  exchanging  watches. 
How  is  the  case  to  be  dealt  with? 

Both  are  indictable,  and  neither  can  defend  on  the  ground  of  the 
deceit  of  the  other.  Commonwealth  v.  Merrill,  8  Cush.  (Mass.) 
571,  572. 

It  is  held  In  New  York,  however,  that  where  money  Is  paid  to  a  pre- 
tended officer  not  to  serve  a  warrant,  the  indictment  will  not  lie. 
McCord  v.  People,  46  N.  Y.  470.  This  goes  on  the  ground  that  the  object 
01  the  law  is  to  protect  the  honest,  while  the  better  view  is  that  "  the 
law  is  for  the  protection  of  al-1,  by  the  punishment  of  rogues."  May's 
€rim.  L.  (2d.  ed.),  §  312. 

59.  A.  obtains  B.'s  property  by  false  pretenses,  which,  however, 
were  so  obviously  false  that  B.  would  not  have  been  deceived,  but 
for  extreme  negligence.      Can  A.  defend  on  that  ground? 

No.  It  was  once  generally  the  law,  as  expressed  by  Lord  Holt, 
that  one  man  is  not  to  be  indicted  because  another  has  been  a  fool. 
Regina  v.  Jones,  2  Ld.  Raym.  1013.  At  present,  however,  it  is 
generally  held  that  if  the  pretense  actually  causes  the  man  to  part 
with  his  property,  the  offense  is  complete  regardless  of  his  lack  of 
caution.  The  act  is  equally  criminal  Avhether  or  not  it  is  easy  of 
perpetration.  Cowen  v.  People,  14  111.  348,  349,  350;  State  V. 
Mills,  17  Me.  211,  218. 

60.  A.  obtained  property  from  B.  upon  representations,  some 
of  which  were  false  and  others  true.     Under  what  circumstances 
can  he  be  convicted? 

The  false  pretense  need  not  be  the  only  inducement.  B.  would 
be  convicted  if  the  fraud  would  not  have  been  accomplished  but 
for  the  false  pretense.  People  v.  Haynes,  11  Wend.  (X.  Y.)  557, 
567;  s.  c.,  14  id.  546,  555;  Foy  v.  Commonwealth,  28  Gratt. 
(Va.)  912,  917.  The  pretense  must  be  reasonably  near,  however. 
Thus,  where  a  man  obtained  admission  to  a  race  by  false  pretenses 
and  won  a  prize,  he  was  held  not  to  be  guilty  of  obtaining  the 
prize  by  false  pretenses. 

61.  What  kind  of  property  may  be  obtained  under  false  pre- 
.tenses  ? 

In  general,  the  property  must  be  such  as  is  the  subject  of  larceny. 
For  example,  the  obtaining  of  credit  is  not  generally  within  the 
statutes.  Regina  v.  Kagleton,  Dears.  515,  537.  The  particular 
statute  of  the  jurisdiction  must  control,  however. 

The  property  must  have  b<*on  actually  obtained  by  the  pretense. 
If  the  false  pretense  is  simply. used  to  keep  the  possession  of  property, 


174  QUESTIONS  AND  ANSWERS. 

which  has  been  legally  obtained,  the  offense  is  not  committed.    People 
v.  Haynes,  14  Wend.  (N.  Y.)  546,  563. 

It  is  very  serviceable  for  the  student  to  keep  clearly  in  mind  the 
distinctions  by  which  the  offenses  which  have  Just  been  considered, 
shade  from  one  to  the  other.  (1)  In  larceny  the  offender  takes  posses- 
sion from  the  one  rightfully  in  possession,  with  at  least  some  techni- 
cal force,  and,  of  course,  gets  no  title..  (2)  In  larceny  by  trick,  the 
person  rightfully  in  possession  is  induced  by  fraud  to  give  up  pos- 
session, but  not  title.  (3)  In  obtaining  property  under  false  pre- 
tenses the  person  rightfully  in  possession  is  induced  by  fraud  to 
give  up  both  possession  and  title.  (4) .  In  embezzlement  the  pos- 
session is  originally  in  the  offender,  and  he  appropriates  the  prop- 
erty to  his  own  use.  Thus,  in  (1)  possession  is  taken  without  title; 
in  (2)  possession  is  given  without  title;  in  (3)  both  possession  and 
title  are  given;  and  in  (4)  possession  is  in  the  offender  from  the  start. 

d.    Receiving  Stolen  Goods. 

62.  When  is  a  man  guilty  of  receiving  stolen  goods? 

When  he  receives  into  his  possession  goods  of  another,  knowing 
them  to  be  stolen,  with  a  fraudulent  intent  to  deprive  the  person 
rightfiilly  entitled  to  possession,  of  his  interest  in  them.  People 
v.  Johnson,  1  Park.  Cr.  (N.  Y.)  564;  Eice  v.  State,  3  Heisk. 
(Tenn.)  215. 

The  possession  received  need  not  be  actual,  manual  possession,  but 
must  be  equivalent  to  constructive  possession.  State  v.  St.  Clair,  17 
Iowa,  149;  Regina  v.  Wiley,  4  Cox  C.  C.  412.  If  one  finds  property, 
which  he  has  good  reason  to  believe  was  stolen,  and  appropriates  it, 
he  may  even  then  be  convicted  of  receiving  stolen  goods.  Common- 
wealth v.  Moreland,  27  (Old  Series),  Pitts.  D.  J.  (Penn.),  p.  217,  No.  45. 
It  is  always  enough  if  the  receiver  of  goods  has  reasonable  grounds 
for  believing  that  the  goods  were  stolen;  and  if  he  knows  the  facts  of 
the  case  it  is  not  necessary  that  he  should  know  that  they  were  such  as 
would,  in  law,  constitute  larceny.  But  if  he  believed  that  the  circum- 
stances constituted  no  crime  at  all,  the  receiver  cannot  be  convicted. 
Commonwealth  v.  Leonard,  140  Mass.  473. 

e.    Forgery. 

63.  Define  forgery. 

Forgery  is  "  the  fraudulent  making  or  altering  of  a  writing  to 
the  prejudice  of  another  man's  right."  4  Black.  Com.  247. 

The  word  "writing  "  includes  both  printed  and  engraved  matter.  Com- 
monwealth v.  Ray,  3  Gray  (Mass.),  441.  But  not  a  painting,  with  the 
name  of  the  artist  falsely  signed.  Regina  v.  Gloss,  7  Cox  C.  C.  494. 
As  appears  by  the  definition,  the  altering  of  an  instrument  may  be 
forgery,  as  well  as  the  making  of  it,  but  the  alteration  must  be  ma- 


CEIMINAL  LAW.  175 

terial,  as  the  change  of  the  name  of  a  party  ta  negotiable  paper,  or 
an  erasure,  by  which  the  instrument  is  changed.  State  v.  Robinson, 
1  Harr.  (N.  J.)  507;  State  v.  Stratton,  27  Iowa.  420.  So  also  the  altera- ' 
tion  of  an  entry  in  a  book,  or  the  making  of  a  false  entry,  or  even 
the  filling  in  of  a  blank,  to  "defraud  an  employer,  is  forgery.  Biles  v. 
Commonwealth,  32  Penn.  St.  529;  People  v.  Dickie,  17  N.  Y.  Supp.  51. 

The  intent  to  defraud  is,  of  course,  necessary  to  the  offense,  as 
appears  by  the  definition.  Pauli  v.  Commonwealth,  89  Penn.  St. 
432.  And  when  such  intent  exists  it  is  immaterial  that  the  forged 
signature  bears  no  resemblance  to  the  genuine  one;  and  if  the  in- 
tent does  not  exist,  it  makes  no  tdiff  erence  how  close  the  resem- 
blance is.  Commonwealth  v.  Goodenough,  Thatch.  Cr.  Cas. 
(Mass.)  132. 

.  64.  A.  finds  a  will  which  was  executed  without  witnesses, 
and  changes  it  so  as  to  make  himself  sole  legatee.  Is  he  guilty 
of  forgery? 

No.  If  the  instrument  has  no  legal  force,  as  here,  the  alteration 
is  not  forgery.  State  v.  Smith,  8  Yerg.  (Tenn.)  150;  Cunningham 
v.  People,  4  Hun  (N.  Y.),  455.  See  also  State  v.  Anderson,  30  La. 
Ann.  557. 

65.  A.,  knowing  that  his  name  is  the  same  'as  that  of  another 
man,  signs  a  promissory  note  intending  to  pass  it  off  as  the  note 
of  the  other.     Is  the  act  forgery  ? 

Yes.  A  man  may  no,*  use  his  own  name  for  fraudulent  pur- 
poses. People  v.  Peacock,  6  Cow.  (N".  Y.)  72;  Commonwealth  v. 
Foster,  114  Mass.  311.  The  forged  name  may  also  be  that  of  a 
fictitious  person,  or  of  one  deceased.  Sasser  v.  State,  13  'Ohio  St. 
453,  485;  Henderson  v.  State,  14  Tex.  503. 

66.  A.  forges  a  bill  in  New  York  and  sends  it  to  the  drawee 
in  Maine.     Where  has  the  forgery  been  uttered? 

The  forgery  would  seem  to  be  uttered  in  both  jurisdictions. 
Regina  v.  Finkelstein,  16  Cox  C.  C.  107. 

VII.  CRIMINAL  PROCEDURE. 

67.  How  is  an  accusation  made? 

The  formal  accusation  may  be  made  in  three  ways  —  by  indict- 
ment, by  information,  or  by  complaint.  A  complaint  is  an  accusa- 
tion by  a  private  person,  under  oath,  and  is  generally  allowed  only 
in  cases  of  small  misdemeanors.  An  information  is  an  accusation 
by  the  attorney-general,  under  his  own  oath,  and  is"  not  a!  common 
form  of  procedure.  The  usual  form  of  accusation  is  by  indictment, 
which  is  found  by  the  grand  jury  upon  oath.  May's  Grim.  L.  (2d. 
ed.),  §  90. 


"1-76  QUESTIONS  AXD  ANSWERS.  » 

68.  What  is  the  grand  jury  and  what  are  its  duties? 

The  grand  jury  is  a  body  of  at  least  twelve,  and  not  more  than 
twenty-three  men.  Its  meetings  are  attended  only  by  witnesses 
and  the  public  prosecuting  attorney,  and  its  principal  duty  is 
to  pass  upon  the  formal  written  charges  presented  by  the  pros- 
ecution. The  evidence  for  the  prosecution  is  heard,  and  if  twelve 
jurors  find  that  there  are  reasonable  grounds  for  believing  that  the 
charge  stated  in  the  bill  is  true,  the  words  "  true  bill "  are  in- 
dorsed upon  it,  and  certified  by  the  foreman.  Such  bills  are 
handed  to  the  clerk,  and  are  called  indictments. 

Besides  the  bills  prepared  by  the  prosecuting  attorney,  the  grand 
jury  may  inquire  into  matters  wliich  come  to  their  knowledge  in 
considering  other  matters  or  through  the  personal  knowledge  of 
some  member  of  the  jury.  May's  Grim.  L.  (2d  ed.),  91;  McCul- 
lough  v.  Commonwealth,  67  Penn.  St.  30. 

* 

69.  What  are  the  requisites  of  an  indictment? 

The  indictment  must  set  forth  the  crime  of  which  the  defend- 
ant is  accused  fully,  plainly,  substantially  and  formally.  It  must 
describe  the  facts  which  constitute  the  crime  without  ambiguity. 
The  language  is  immaterial  except  where-  it  must  contain  certain 
formal  words,  as  feloniously,  with  malice  aforethought,  etc.  The 
facts,  if  true,  must  necessarily  import  a  crime,  and  all  of  the  ele- 
ments of  the  crime  charged  must  be  set  forth,  as  specific  intent 
in  murder.  The  indictment  must  also  be  so  particular  in  its  fram- 
ing, as  to  furnish  sufficient  information  and  particulars  to  enable 
the  accused  to  prepare  his  defense  properly,  and  it  must  be  suffi- 
ciently precise  to  protect  him  from  a  second  prosecution.  And  even 
where  the  State  goes  farther  than  is  necessary  in  particularizing,  it 
must  prove  every  material  allegation  to  insure  conviction.  Thus, 
if  an  indictment  alleges  that  the  accused  suborned  J.  S.  of  W. 
to  commit  perjury,  it  is  not  enough  to  show  that  he  suborned  J.  S. 
of  X.,  though  the  indictment  would  have  been  good  if  the  residence 
of  J.  S.  had  not  been  alleged  at  all.  Commonwealth  v.  Stone,  152 
Mass.  498. 

The  indictment  must,  of  course,  show  jurisdiction  and  venue; 
i.  e.,  that  the  act  was  against  the  peace  of  the  sovereignty  which 
is  instituting  the  prosecution,  and  that  the  court  in  which  the  in- 
dictment is  found  also  has  jurisdiction. 

The  indictment  must  state  the  name  of  the  accused,  with  such 
accuracy  that  there  can  be  no  doubt  as  to  who  is  meant;  otherwise 
he  could  not  avail  himself  of  a  former  judgment,  if  he  were  prose- 
cuted a  second  time.  Commonwealth  v.  Perkins,  1  Pick.  (Mass.) 
388.  The  time  and  place  of  the  offense  must  also  be  stated,  though 
neither  need  be  proved  precisely  as  alleged,  unless  they  are  material 
to  the  offense,  as  in  the  violation  of  a  Sunday  law,  or  in  burglary. 
State  v.  Caverly,  51  N.  H.  44fi;  Rex  v.  Napper,  1  Moodv  Cr.  C.  44; 
Mfly's  Crim.  L.'  (2d  ed.),  §§  98-116;  Stark.  Crim.  ?1.  (1st  Am.  ed.), 
chap.  V. 


CRIMINAL  LAW.  177 

70.  What  is  the  accurate  meaning  of  the  rule  that  a  man 
shall  not  be  twice  put  in  jeopardy  of  life  or  limb- for  the  same  of- 
fense? . 

The  rule  means  that  where  a  man  has  once  been  indicted,  put 
on  trial  in  a  court  of  competent  jurisdiction,  tried  and  acquitted,  or 
convicted  and  sentenced,  and  has  acquiesced  in  the  punishment  in 
part  or  in  whole,  he  can  plead  the  judgment  as  an  absolute  bar  to 
another  action  for  the  same  offense,  even  if  the  first  indictment 
was  insufficient  and  the  proceedings  irregular.  Commonwealth 
v.  .Land,  3  Mete.  (Mass.)  328;  Ex  parte  Lange,  18  Wall.  (U.  S.)  163. 

This  is  an  ancient  rule  of  the  common  law,  which  has,  however, 
found  its  way  into  the  Federal  Constitution,  and  into  those  of  most 
or  all  of  the  States.  It  has  been  argued  from  the  words  "  jeopardy 
of  life  or  limb,"  that  where  such  words  are  used  the  rule 
is  applicable  only  in  cases  of  such  crimes  as  are  punished  by  injury 
to  life  or  limb,  but  it  is  universally  held,  that  the  rule  is  applicable  to 
all  grades  of  offenses.  Bryans  v.  State,  34  Ga.  323;  Ferris  v.  People, 
48  Barb.  (N.  Y.)  17.  If,  however,  the  act  actually  constitutes  two 
different  offenses,  there  may  be  punishment  for  each.  State  v.  Innes, 
53  Me.  536;  Commonwealth  v.  McShane,  110  Mass.  502. 

So  firmly  Is  this  rule  established,  that  a  second  prosecution  is  not 
possible,  even  though  the  acquittal  of  the  accused  was  due  to  the 
judge's  mistake  .of  law.  or  the  jury's  disregard  of  fact.  If  the  accused, 
however,  be  convicted  by  an  error  of  the  judge  or  misconduct  on  the 
part  of  the  jury,  the  verdict  may  be  set  aside  at  his  request.  The 
trial  is  then  regarded  as  not  completed,  so  that  the  accused  may  again 
sit  at  the  bar.  Com  m  on  wealth,  v.  Sholes,  13  Allen  (Mass.),  554. 

The  rule,  however,  does  not  protect  from  prosecution  by  another 
sovereignty,  where  the  same  .act  is  a  violation  of  the  laws  of  both,  as 
a  conviction  can  have  no  ?xtra  -tprritorial  effect.  United  States  v.  Amy, 
14  Md.  149,  note,  152;  State  v.  Brown,  1  Hayw.  (X.  C.)  100. 

71.  What  is  meant  by  the  "  same  offense  "  in  the  above  rule? 

"  To  entitle  the  defendant  to  this  plea,  it  is  necessary,  that  the 
crime  charged  be  precisely  the  same;  if  the  crimes  charged  in  the 
former  and  present  prosecution  are  so  distinct,  that  evidence  of 
the  one  will  not  support  the  other,  it  is  inconsistent  with  reason, 
as  it  is  repugnant  to  the  rules  of  law,  to  say  that  the  offenses  are  so 
far  the  same,  that  the  acquittal  of  the  one  will  be  a  bar  to  the  pros- 
ecution for  the  other."  Where  the  prisoner  might  have  been  con- 
victed on  the  first  indictment  by  proof  of  the  facts  contained  in  the 
second  indictment,  an  acquittal  on  the  first  is  a  bar  to  the  second. 
Burns  v.  People,  1  Park.  C.  C.  (X.  Y.)  182;  Commonwealth  v.  Roby, 
12  Pick.  (Mass.)  496. 

Where,  however,  under  the  first  indictment,  there  was  an  acquittal 
for  variance,  in  that  the  venue  was  improperly  stated,  or  the  crime 
12 


178  QUESTIONS  AND  ANSWERS. 

•wrongly  described,  a  new  indictment  will  lie.  The  two  offenses  in 
such  cases  are  not  the  same.  Commonwealth  v.  Call,  21  Pick.  (Mass.), 
509;  May's  Crim.  L.  (2d  ed.)(  §  122. 

Wh*ere  a  person  has  been  tried  for  an  offense,  which  necessarily  in- 
cludes others  of  which  he  might  have  been  convicted  under  the  first 
indictment,  he  cannot  be  tried  a  .second  time  for  those  lesser  offenses. 
Thus,  a  trial  and  acquittal  for  robbery  is  a  bar  to  an  indictment  for 
larceny,  where  property  alleged  to  have  been  taken  is  the  same.  Peo- 
ple v.  McGowan,  17  Wend.  (N.  Y.)  386.  But  on  the  other  hand,  a  con- 
viction under  an  indictment  for  assault,  with  intent  to  kill,  is  no  bar 
to  an  indictment  for  murder,  as  the  accused  has  never  met  the  second 
charge.  See  Commonwealth  v.  Roby  12  Pick.  (Mass.)  496;  Burns  v. 
People,  1  Park.  C.  C.  (N.  Y.)  182. 

After  an  acquittal  on  an  indictment  for  manslaughter,  however,  the 
accused  cannot  be  tried  for  murder,  as  the  previous  acquittal  neces- 
sarily involved  a  finding  upon  the  issue  of  killing,  whether  with  or 
without  malice,  in  favor  of  the  defendant.  State  v.  Foster,  33  Iowa, 
085,  526;  1  Bishop  on  Criminal  Law,  chap.  63. 


DAMAOES. 


I.  NOMINAL  DAMAGES. 

1.  Define  damnum  absque  injuria. 

The  phrase  means  the  damage,  pecuniary  or  otherwise,  which  a 
man  suffers,  owing  to  the  act  of  another,  but  which  act  gives  him 
no  right  to  legal  redress;  e.  g.,  where  a  man  is  damaged  by  trade 
competition,  or  by  the  proper  use  of  water  by  riparian  owners,  or 
by  the  lawful  use  of  his  neighbor's  property.  The  plaintiff  has  a 
right  of  action  only  when  the  defendant  has  violated  some  duty 
owed  the  plaintiff.  Penn.  Coal  Co.  v.  Sanderson,  113  Penn.  St. 
126. 

2.  A.  enters  upon  B.'s  land  by  mistake  and  fertilizes  it.     Can 
B.  recover  in  an  action  of  trespass? 

Yes.  The  violation  of  a  legal  right  (injuria)  gives  a  right  to 
damages,  and  B.  would  be  entitled  to  nominal  damages  here,  though 
he  had  suffered  no  real  damage  whatever,  but  had  been  actually 
benefited.  Gile  v.  Stevens,  13  Gray  (Mass.),  146.  In  the  case  sug- 
gested, such  a  rule  is  particularly  necessary  in  order  to  protect  titles 
from  constant  trespass.  Hathorne  v.  Stinson,  12  Me.  183.  But  it 
applies  to  all  kinds  of  actions,  every  injuria  being  held  to  "  import 
damage."  Ashby  v.  White,  2  Ld.  Raym.  938,  955. 

Lord  Holt  there  says:  "  Every  injury  imports  a  damage,  though 
it  does  not  cost  the  party  one  farthing." 

Nominal  damages,  however,  are  only  granted  to  affirm  an  in- 
fringed right,  not  to  compensate  for  any  injury,  and  such  an  award 
is  not  an  exception  to  the  underlying  principle  of  damages,  that 
a  plaintiff  can  only  recover  what  he  has  suffered.  1  Sutherland  on 
Damages  (1st  ed.),  17. 

II.  REMOTE  DAMAGES. 

3.  How  far  is  a  defendant  liable  for  the  remote  consequences 
of  his  act? 

He  has  no  responsibility  for  such  consequences.  The  rule  is 
well  stated  in  Warwick  v.  Hutchinson,  45  X.  J.  Law,  61.  "  It 
is  a  fundamental  principle  of  law  applicable  alike  to  breaches  of 
contract  of  this  description,  and  to  torts,  that  in  order  to  found 
a  right  of  action  there  must  be  a  wrongful  act  done,  and  a  loss  re- 
sulting from  that  wrongful  act;  the  wrongful  act  must  be  the  act 

179 


180  QUESTIONS  AND  ANSWERS. 

of  the  defendant,  and  the  injury  suffered  by  the  plaintiff  must  be 
the  natural. and  not  merely  a  remote  consequence  of  the  defend- 
ant's act.  The  wrong  done  and  the  injury  sustained  must  bear 
to  each  other  the  relation  of  cause  and  effect;  and  the  damages, 
whether  they  .arise  from  withholding  a  legal  right,  or  the  breach 
of  a  legal  duty,  to  be  recoverable,  must  be  the  natural  and  proxi- 
mate consequence  of  the  act  complained  of." 

But  to  be  natural,  it  is  not  necessary  that  the  consequences  be  such 
as  the  defendant  could  foresee.  They  need  only  be  of  a  kind  which 
would  be  natural.  Childress  v.  lourie,  Meigs  (Tenn.),  561. 

Where,  moreover,  another  efficient  cause  intervenes  between  the  de- 
fendant's act  and  the  injury,  the  defendant  is  not  responsible.  Marble 
v.  Worcester,  4  Gray  (Mass.),  395. 

See  also  on  proximate  and  remote  cause,  Torts,  Ques.  66. 

III.  PBOSPECTIVE  AND  PERMANENT  INJURJT. 

4.  A.  unlawfully  diverts  the  water  of  a  stream  so  as  to  injure 
t*  riparian  owner  below.      The  latter  sues  for  the  permanent  in- 
jury arising  from  the  depreciated  value  of  his  land.      What 
would*be  the  measure  of  his  recovery? 

He  could  recover  for  his  injury  only  up  to  the  date  of  the  suit. 
The  court  will  not  presume  that  the  ..defendant  will  continue  his 
unlawful  conduct,  after  it  has  been  so  declared.  The  first  action 
establishes  the  plaintiff's  right  to  damages  up  to  that  time;  sub- 
sequent "actions  must  be  brought,  if  the  injury  continues,  and  no 
former  action  is  a  bar.  Bare  v.  Hoffman,  79  Penn.  St.  71;  Uline  v. 
N.  Y.  C.  &  H.  E,  E.  E,  Co.,  101  N.  Y.  98,  and  cases'  cited. 

Where,  however,  injury  results  from  the  erection  of  structures, 
such  as  public  works,  which  from  their  nature  are  to  be  permanent, 
successive  suits  need  not  be  resorted  to,  but  the  entire  damage  will 
be  awarded  at  once.  Smith  v.  E.  E.  Co.,  23  W.  Va.  451,  453. 

IV.  EXEMPLARY  OR  PUNITIVE  DAMAGES. 

5.  Under  what  circumstances  should  exemplary  or  punitive 
damages  be  awarded? 

.  Upon  strict  principles  of  law,  they  should  never  be  awarded. 
The  purpose  of  civil  courts  is  not  to  punish  defendants,  but  to  give 
the  plaintiff  such  damage  as  he  has  suffered.  He  is  entitled  to  no 
more,  and  the  defendant  should  not  be  required  to  pay  more;  and  if 
lor  reasons  of  public  policy  the  defendant  is  to  be  punished,  the 
infliction  of  such  punishment  is  within  the  province  of  the  crim- 
inal courts,  and  the  fines  imposed  do  not  belong  to  the  plaintiff. 
Onlv  a  few  States,  however,  hold  in  accordance  with  these  princi- 
ples; and  in  most  jurisdictions,  if  a  defendant  acts  with  malice  or 
gross  negligence  or  wilfully,  punitive  damages  will  be  given.  Par- 


DAMAGES.  181 

ker  v.  Shackelford,  61  Mo.  68.  The  general  tendency  of  the  courts, 
however,  is  to  be  more  conservative  than  formerly,  in  allowing 
exemplary  damages;  and  in  Massachusetts,  New  Hampshire,  In- 
diana, Nebraska  and  Michigan,  the  principle  of  punishing  a  de- 
fendant by  giving  the  plaintiff  more  than  he  is  entitled  to  has 
been  repudiated.  Boyer  v.  Barr,  8  Neb.  68;  Stilson  v.  Gibbs,  53 
Mich.  280,  283;  Stewart  v.  Maddox,  63  Ind.  51,  57;  Maegher  v. 
,  Driscoll,  99  Mass.  281,  285;  Bixby  v.  Dunlap,  56  N.  H.  456. 

Where  the  defendant  has  been  culpably  in  the  wrong,  however, 
there  is  always  a  tendency  to  be  more  liberal  in  awarding  damages. 
"  The  true  rule,  as  i  understand  it,"  said  Gushing,  J.,  "  is  to  instruct 
the  jury,  that  if  they  find  the  defendant  has  been  malicious  the  rule 
of  damages  will  be  more  liberal."  Bixby  v.  Dunlap,  56  N.  H.  i56, 
464;  Smith  v.  Holcomb,  99  Mass.  552. 

6.  Where,  by  statute,  an  action  of  tort  survives  the  death  of  tort- 
feasor,  may  punitive  damages  be  awarded  against  his  executor? 

No.  Even  where  the  courts  are  most  liberal  in  allowing  puni- 
tive damages,  they  will  not  be  allowed  against  the  representatives 
of  the  deceased,  the  object  of  the  rule  being,  as  the  courts  holclr 
not  to  compensate  the  plaintiff,  but  to  punish  the  defendant, 
feheik  v.  Hobson,  64  Iowa,  146. 

T.  Can  a  corporation  be  held  liable  for  punitive  damages  under 
any  circumstances? 

Yes.  In  many  jurisdictions,  punitive  damages  will  be  allowed 
against  a  corporation  for  the  wrongful  act  of  its  agent,  acting 
within  the  scope  of  his  employment,  when  such  damages  could  be 
recovered  against  the  agent  himself,  even  though  the  corporation 
was  in  no  moral  way  responsible  for  the  agent's  act,  either  by 
original  authority  or  ratification  or  through  negligence  in  select- 
ing the  agent.  Atlantic  &  Great  West.  R.  R.  Co.  v.  Dunn,  19  Ohio 
St.  162 ;  McKeon  v.  Citizens  R.  R.  Co.,  42  Mo.  79.  See  also  Doss 
v.  Mo.,  etc.,  R.  R.  Co.,  59  Mo.  27. 

Some  of  the  States,  however,  .adopt  the  more  reasonable  rule  of  re- 
fusing to  allow  punitive  damages,  except  where  the  corporation  has 
some  moral  responsibility  for  defendant's  injury.  In  Cleghorn  v.  X.  Y., 
etc..  R.  Co.,  56  N.  Y.  44,  47,  the  court  said :  "  For  the  purpose  of  this 
case,  the  following  rule  may  be  laid  down  as  fairly  deducible  from  the 
authorities,  viz. :  For  injuries  by  the  negligence  of  a  servant,  while 
engaged  in  the  business  of  the  master,  within  the  scope  of  his  employ- 
ment, the  latter  is  liable  for  compensatory  damages ;  but  for  such 
negligence,  however  gross  or  culpable,  he  is  not  liable  to  be  punished 
in  punitive  damages,  unless  he  is  also  chargeable  with  gross  miscon- 
duct." Cf.  Maisenbacker  v.  Concordia  Society,  71  Conn.  369,  holding 
that  the  corporation  is  liable  for  punitive  damages  only  when  it  has 
authorized  or  ratified  the  act  of  misconduct. 


182  QUESTIONS  AND  ANSWERS. 

V.    LIQUIDATED  DAMAGES. 

8.  Under  what  circumstances  may  a  provision  in  a  contract 
for  liquidated  damages  be  enforced'/      When  may  a  penalty  be 
collected  ? 

When  a  sum  is  fixed  upon  by  the  parties  to  a>  contract  as  a  fair 
measure  of  the  damages  which  will  be  sustained  by  a  breach  of  that 
contract,  and  especially  when  liquidated  damages  are  agreed  to, 
because  of  the  nature  of  the  contract,  the  uncertainty  of  proof  of 
damage,  or  the  difficulty  of  calculating  it,  the  courts  will  enforce 
the  provisions.  Streeper  v.  Williams,  48  Penn.  St.  450,  454.  As 
where  A.  agrees  to  pay  a  fixed  sum  in  case  of  failure  to  exchange 
or  sell  real  estate.  Gammon  v.  Howe,  14  Me.  250;  Mead  v. 
Wheeler,  13  N.  H.  351.  So  also  in  a  contract  not  to  carry  on  a 
certain  business.  Dunlop  v.  Gregory,  10  X.  Y.  241. 

Where,  however,  the  parties  merely  provide  for  a  penalty  in 
case  of  nonperformance,  the  courts  will  never  enforce  it. 

"  The  great  object  of  this  system  (compensation)  is  to  place  the 
plaintiif  in  as  good  a  position  as  he  would  have  had,  if  his  contract 
had  not  been  broken.  So  long  as  parties  themselves  keep  this 
principle  in  view,  they  will  be  allowed  to  agree  upon  such  a  sum 
as  will  probably  be  a  fair  equivalent  of  a  breach  of  contract.  But 
when  they  go  beyond  this,  and  undertake  to  stipulate,  not  for  com- 
pensation, but  for  a  sum  out  of  all  proportion  to  the 'measure  of 
liability  which  the  law  regards  as  compensator}',  then  the  law  will 
not  allow  the  agreement  to  stand.  In  all  agreements,  therefore, 
fixing  upon  a  sum  in  advance  as  the  measure  or  limit  of  liability, 
the  final  question  is,  whether  the  subject  of  the  contract  is  such 
that  it  violates  this  fundamental  rule  of  compensation.  If  it  does 
so,  the  sum  fixed  is  necessarilv  a  penalty."  Sedgwick  on  Damages 
(8th  ed.),  §  406. 

The  general  result  of  the  authorities  has  been  correctly  stated 
to  be,  that  "  when  the  injury  is  susceptible  of  definite  admeasure- 
ment, as  in  all  cases  where  the  breach  consists  in  the  nonpayment 
of  money,  the  parties  will  not  be  allowed  to  make  a  stipulation  for 
a  greater  amount,  whether  in  the  form  of  a  penalty,  or  of  liquidated 
damages."  Bispham's  Eq.  (3d  ed.)  234.  And  cf.  Equity,  Ques.  15. 

9.  A.  agrees  to  hare  the  work  on  a  railroad  bridge  completed 
by  a  certain  day,  and  to  be  liable  for  $1,000  per  week  as  liqui- 
dated damages  for  failure  to  complete  the  icork.      Is  the  pro- 
vision for  damages  binding? 

Yes.  This  is  one  of  the  class  of  cases  where,  from  the  nature  of 
the  contract,  the  damages  cannot  be  computed  with  any  degree  of 
certainty,  and  the  courts  will  enforce  the  payment  of  the  stipu- 
lated sum  as  liquidated  damages.  Texas,  etc.,  R.  R.  Co.  v.  Rust, 
19  Fed.  Rep.  239;  Wolf  v.  Des  Moines,  etc.,  R,  R.  Co.,  64  Iowa, 
380;  Curtis  v.  Brewer,  34  Mass.  513. 


DAMAGES.  183 

VI.  BREACHES  OF  CONTRACT. 

10.  A.  and  B.  enter  into  a  contract  for  the  sale  and  pur- 
chase of  real  estate.      What  is  the  measure  of  damages  in  case 
of  a  failure  to  perform? 

If  the  vendee  will  not  accept  title  when  offered,  the  measure  of 
damages  is  the  difference  between  the  price  agreed  to  be  paid  for 
the  land  and  the  salable  value  of  the  land  at  the  time  the  con- 
tract was  broken.  Old  Colony  R.  R.  Co.  v.  Evans,  6  Gray  (Mass.), 
25,  34. 

If  the  vendor  conveys  away  title  or  refuses  to  convey  to  the 
purchaser,  he  also  will  be  liable  in  substantial  damages.  Wilson 
v.  Spencer,  11  Leigh  (Va.),  261.  The  measure  of  damages  in  that 
case  would  be  the  difference  between  the  contract  price  and  the 
market  value  of  the  land  at  the  time  when  the  conveyance  should 
have  been  made.  Drake  v.  Baker,  34  Is.  J.  Law,  358. 

Where,  however,  the  vendor  is  unable  to  make  a  good  title  the 
courts  differ  as  to  the  measure  of  damages  allowed.  Some  hold 
that  the  vendor  is  liable  only  for  nominal  damages,  when  he  is 
unable  to  make  good  title  through  no  fault  of  his,  but  hold  him  to 
substantial  damages,  if  there  is  fraud.  Cockroft  v.  N.  Y.,  etc., 
R.  R.  Co.,  69  N.  Y.  201;  Tracy  v.  Gunn,  29  Kan.  508. 

In  several  States,  however,  no  distinction  is  taken,  and  sub- 
stantial damages  are  allowed  in  all  cases  of  breach,  whether  arising 
from  bad  faith,  or  inability  to  convey,  on  the  part  of  the  vendor. 
The  courts  so  holding,  are  Maine,  Indiana,  Massachusetts,  Iowa, 
Maryland,  Rhode  Island,  and  Illinois.  See  Case  v.  Wolcott,  33 
Ind.  5;  Hopkins  v.  Lee,  6  Wheat.  (U.  S.)  109;  5  Am.  &  Eng.  Ency. 
(1st  ed.)  28,  note  3,  cases  cited. 

11.  A.  agrees  to  sell  B.  certain  goods  at  a  specified  time  and 
place,     B.  refuses  to  take  the  goods.     What  remedy  or  remedies 
has  A.? 

He  has  a  choice  of  three  remedies:  "  (1)  He  may  store  or  re- 
tain the  property  for  the  vendee,  and  sue  him  for  the  entire  pur- 
chase price;  (2)  he  may  sell  the  property,  acting  as  the  agent,  for 
this  purpose,  of  the  vendee,  and  recover  the  difference  between  the 
contract  price  and  the  price  obtained  in  such  resale;  or  (3)  he  may 
keep  the  property  as  his  own,  and  recover  the  difference  between 
the  market  price  at  the  time  and  place  of  delivery,  and  the  con- 
tract price."  Dustan  v.  Me  Andrew,  44  K  Y.  72,  78;  Ames  v.  Moir, 
130  111.  582,  592;  2  Sedgwick  on  Damages  (8th  ed.),  §  750  et 
seq. 

Where  there  is  no  market  at  the  place  of  delivery,  evidence  of  the 
value  of  the  goods  iu  the  nearest  market  determines  the  question.  East 
Tenn.  R.  R.  Co.  v.  Hale.  85  Tenn.  69;  Washington  Ice  Co.  v.  Webster, 
<>8  Me.  449,  463.  The  market  price,  however,  does  not  always  determine 


184  QUESTIONS  AND  ANSWEES. 

the  market  value  of  the  goods.  Where  there  is  an  inflated  speculative 
market  the  actual  market  value  is  the  standard,  and  this  may  be 
ascertained  by  the  price  before  or  after  the  day  of  delivery.  Kountz 
v.  Kirkpatrick,  72  Penn.  St.  376,  388. 


12.  The  paintiff  bought  cabbage  seed  from  defendant,  which 
was  warranted  to  produce  "  Bristol  cabbages."      What  would 
be  the  measure  of  damages  for  a  breach  of  the  warranty? 

The  plaintiff  could  recover  the  value  of  a  crop  of  "  Bristol  cab- 
bages," such  as  would  ordinarily  have  been  raised  that  year,  less 
the  expense  of  raising  the  crop  and  the  value  of  the  crop  actually 
raised.  Passinger  v.  Thorburn,  34  N.  Y.  634;  White  v.  Miller,  78 
id.  393.  In  such  a  case  the  profit  to  be,  made  is  really  the  only 
thing  purchased,  and  is  properly  made  the  measure  of  damages. 
Wood's  Mayne  on  Damages,  82. 

13.  A.  contracts  to  sell  and  deliver  certain  goods  to  B.  at  a 
fixed  price.     A.  fails  to  deliver.     What  is  the  measure  of  dam- 
ages?    Suppose  the  goods  have  been  paid  for  in  advance? 

Where  the  goods  have  not  been  paid  for,  the  measure  of  damages 
is  plain  on  principle  and  authority.  "  It  is,  no  doubt,  quite  set- 
tled that,  on  a  contract  to  supply  goods  of  a  particular  sort,  which 
at  the  time  of  the  breach  can  be  obtained  in  the  market,  the 
measure  of  damages  is  the  difference  between  the  contract  price  and 
the  market  price  at  the  time  of  the  breach."  Blackburn,  J.,  El- 
binger  v.  Armstrong,  L.  R.  9  Q.  B.  473,  476. 

Where,  however,  the  price  has  been  paid  in  advance,  the  courts 
are  divided.  In  some  jurisdictions  it  is"  held  that  the  purchaser 
having  lost  the  use  of  his  money  should  be  allowed  as  damages  the 
best  price  he  could  have  obtained  for  the  property,  at  any  time  up 
to  the  time  of  the  trial.  It  is  considered  just  that  as  the  seller 
alone  is  in  fault,  he  should  run  the  risk  of  the  fluctuations.  This 
rule  obtains  in  California,  Connecticut,  Iowa,  Indiana,  Texas,  and 
New  York.  21  Am.  &  Eng.  Ency.  620. 

Even  in  these  jurisdictions,  however,  a  purchaser  would  probably 
not  be  allowed  to  delay  bringing  a  suit  for  an  unreasonable  time,  in 
order  to  speculate  upon  the  market  at  the  expense  of  the;  seller. 
Clark  v.  Pinney,  7  Cow.  (N.  Y.)  681.  And  in  Heilbroner  v,  Doug- 
lass, 45  Tex.  402,  it  was  held  that  this  rule  would  not  apply  when 
the  circumstances  of  the  case  made  it  inequitable. 

The  States  opposing  this  rule,  and  advocating  the  regular  rule, 
based  upon  the  market  price  at  the  time  of  delivery  called  for  in  the 
contract,  are  Pennsylvania,  Vermont,  Maine,  Xew  Hampshire,  Illi- 
nois, Michigan,  Colorado,  Kentucky,  Tennessee,  Mississippi,  Louis- 
iana. .21  Am.  &  Eng.  Ency.  621,  622. 


DAMAGES.  185 

> 

VII.  PROFITS. 

14.  A.  agreed  to  print  show  bills  for  B.  before  his  arrival  in 
town,  but  failed  to  do  so,  and,  as  a  result,  B.'s  circus  was  not  ad- 
vertised.    B.  sues  for  the  profits  he  would  naturally  have  made 
had  the  advertising  been  done.      Can  he  recover  on  that  basis? 

No.  His  measure  of  damages  is  the  difference  between  the 
contract  price  for  the  printing  and  what  he  had  to  pay  to  effect,  as 
far  as  possible,  the  same  amount  of  advertising,  by  the  means 
which  he  actually  used.  Great  West.,  etc.,  Co.  v.  Tucker  (Iowa), 
34  N.  W.  Eep.  205. 

15.  A.  agrees  to  employ  B.  as  his  agent  for  one  year  at  a 
salary  of  $1,500,  but  dismisses  him  at  the  end  of  six  months 
without  good  reasons.     What  would  be  the  measure  of  B.'s  dam- 
ages? 

A.  may  wait  until  the  Expiration  of  the  year,  and  then  recover 
the  entire  balance  of  salary  due,  less  what  he  has  or  might  reason- 
ably have  earned  during  that  time  elsewhere.  Howard  v.  Daly,  61 
N.  Y.  362.  He  must  not  remain  idle  needlessly  for  the  purpose  of 
recovering  the  entire  amount.  Howard  v.  Daly,  61  X.  Y.  362,  371. 
But  on  the  other  hand,  he  is  only  bound  to  seek  like  employment 
for  the  purpose  of  reducing  damages,  and  cannot  be  required  to 
undertake  some  other  trade  or  calling.  Fuchs  v.  Koerner  (N.  Y.), 
The  Eeporter,  February  1,  1888. 

VIII.  INTJURY  TO  PROPERTY. 

16.  A.,  owing  to  an  erroneous  survey,  mines  coal  fr.om  B.'s 
land.      B.  sues  for  the  value  of  the  coal  at  the  mouth  of  the 
mine.      Can  he  recover? 

No.  The  most  that  he  could  recover  in  any  jurisdiction  would 
be  the  value  of  the  coal  after  severance  and  before  it  was  put 
upon  the  mine  cars.  Blaen  Avon  Coal  Co.  v.  McCulloh,  59  Md. 
403;  Moody  v.  Whitney,  38  Me.  174.  See  also  Tilden  v.  Johnson, ' 
52  Vt.  628.  The  same  view  is  held  in  Xorth  Carolina,  California 
and  Illinois.  5  Am.  &  Eng.  Ency.  (1st  ed.)  36,  note  2,  cases  cited. 

The  most  general  rule,  however,  is  that  the  plaintiff  can  recover 
only  actual  compensation,  measured  by  the  value  of  the  coal  in  place 
and  such  other  damage  to  the  land  as  the  mining  may. have  caused. 
That  is  full  compensation,  and  does  not  place  upon  the  innocent 
trespasser  the  hardship  of  forfeiting  the  cost  of  his  labor  in  mining 
the  coal.  Herdic  v.  Young,  55  Penn.  St.  176;  Winchester  v.  Craig, 
33  Mich.  205. 

17.  A.  cut  and  carried  away  B.'s  timber.      What  would  be 
the  measure  of  damages? 

The  amount  of  recovery  would  dep'end  upon  the  animus  of  the 
defendant.  (1)  Where  the  defendant  is  a  wilful  trespasser  the 


186  QUESTIONS  AND  ANSWERS. 

plaintiff  may  recover  the  full  value  of  the  property  at  the  time  and 
place  of  demand,  or  of  suit  brought,  with  no  deduction  for  the  de- 
fendant's labor  or  expense.  (2)  Where  he  is  an  unintentional  or 
mistaken  trespasser,  or  an  innocent  vendee  from  such  trespasser, 
the  measure  of  damages  is  the  value  at  the  time  of  conversion;  or 
if  the  conversion  sued  for  was  after  value  had  been  added  to  it  by 
the  work  of  the  defendant,  the  value  less  the  cost  of  such  improve- 
ment. (3)  Where  he  is  a  purchaser  without  notice  from  a  wilful 
trespasser,  the  value  at  the  time  of  such  purchase.  Woodenware 
Co.  v.  U.  S.,  106  U.  S.  432;  Winchester  v.  Craig,  33  Mich.  205.  See 
Pers.  Prop.,  Ques.  4,  for  remedy  in  replevin. 

IX.  INJURY  TO  PERSON. 
a.     Not  Causing  Death. 

18.  What  are  the  elements  of  damage  in  cases  of  personal  in- 
jury not  causing  death?  . 

When  punitive  damages  are  not  givfh,  the  elements  of  damage 
to  be  considered  are  (1)  the  plaintiff's  loss  of  time  from  his  busi- 
ness or  employment;  (2)  his  loss  of  capacity  to  perform  the  kind  of 
labor  for  which  he  is  fitted;  (3)  the  expense  he  has  incurred  for 
medical  services,  nursing,  etc.,  and  (4)  the  mental  pain  he  has 
suffered  and  any  insult  and  indignity  involved  in  the  injury.  5 
Am.  &  Eng.  Ency.  (1st  ed.)  40. 

19.  A.,  when  about  to  cross  a  railroad  track,  receives  a  severe 
mental  shock  by  the  passing  of  a  train.     The  employee  of  the 
railroad  company  negligently  failed  to  signal  the  fact  that  the 
train  was  approaching,  but  A.  was  in  no  way  physically  injured. 
Has  A.  any  right  of  recovery? 

The  weight  of  authority  is  overwhelmingly  in  favor  of  the  posi- 
tion that  no  recovery  can  be  had,  where  there  is  no  physical  injury 
or  contact  in  connection  with  the  mental  suffering.  Indianapolis, 
etc.,  R.  R.  Co.  v.  Stables,  62  111.  313.  In  that  case  the  court  said  (p. 
321):  "  The  mental  anguish  which  would  not  be  proper  to  be  con- 
sidered is  where  it  is  not  connected  with  the  bodily  injury."  See 
also  Canning  v.  Williamstown,  1  Gush.  (Mass.)  451. 

There  is,  however,  a  tendency  at  present  in  some  of  the  courts 
to  allow  a  recovery  for  mental  suffering  pnrely,  and  the  theory 
of  the  law  ef  damages  would  seem  to  justify  these  cases.  Once  it 
is  clearly  established  that  any  injury  has  been  done,  its  nature 
should  not  preclude  recovery.  See  1  Sedgwick  on  Damages  (8th 
ed.),  §  43  et  seq. 

In  practical  accordance  with  this  view  is  Craker  v.  Chicago,  etc., 
R.  R.  Co.,  36  Wis.  657;  s.  c.  9  Am.  Ry.  Rep.  118,  in  which  the 
plaintiff  was  given  a  verdict  of  $1,000,  for  the  insult  of  a  conductor 
of  the  defendant  commnv  in  kissing  her.  In  this  case,  how- 
ever, there  was  the  technical  physical  contact. 


/  DAMAGES.  187 

20.  A.'s  arm  was  broken  through  the  negligence  of  the  de- 
fendant company.      The  defense  is  that  the  arm  would  not  have 
been  broken  but  for  a  previous  break  which  had  not  been  prop- 
erly healed,  and  that  the  amount  of  damages  must,  at  least,  be 
reduced.      What  should  be  the  judgment? 

Judgment  should  be  for  the  plaintiff  for  the  full  amount  of  the 
injury.  The  physical  condition  of  a  passenger,  or  of  any  other 
plaintiff,  whether  known  to  the  defendant  or  not,  in  no  way  affects 
the  question  of  liability  er  the  measure  of  damages.  Allison  v. 
Chicago,  etc.,  R.  R..Co.,  42  Iowa,  274.  See  also  Brown  v.  Chicago, 
etc.,  E.  R.  Co.,  54  Wis.  342. 

In  personal  injuries,  however,  as  in  other  cases,  the  injured  person 
must  take  reasonable  care  to  mitigate  the  consequences  of  the  injury, 
and  if  the  injury  is  aggravated  or  becomes  permanent  through  neglect- 
ing to  take  such  care,  he  cannot  recover  for  Jhe  injury  arising  from 
such  neglect.  R.  R.  Co.  v.  Pennell,  94  111.  448.  But  if  the  plaintiff  use 
reasonable  care  in  employing  a  physician,  the  damages  will  not  be  miti- 
gated by  the  fact  that  a  more  skillful  physician  could  have  prevented 
the  aggravation  of  the  injuries.  Collins  v.  Council  Bluffs,  32  Iowa,  324, 
329;  Stover  v.  BluehUl,  51  Me.  439. 

b.     Causing  Death. 

21.  What  is  the  measure  of  damages  in  statutory  actions  by 
survivors  in  case  of  personal  injuries  causing  death? 

The  measure  of  damages  is  compensation  for  the  pecuniary  loss 
of  the  survivors,  arising  from  the  death  of  the  deceased.  The  cir- 
cumstances to  be  considered  are  the  age  of  the  deceased,  the  amount 
of  his  earnings,  his  habits,  health,  capacity  for  labor,  and  probable 
duration  of  life.  Macon,  etc.,  R.  R.  Co.  v.  Johnson,  38  Ga.  409, 
434. 

The  loss  of  the  plaintiffs  must  be  a  pecuniary  one,  and  nothing  is 
added  as  solatium  for  injury  to  the  feelings  of  the  survivors.  Chicago, 
etc.,  R.  R.  Co.  v.  Harwood,  80  111.  88. 

But  loss  of  intellectual  and  moral  training  and  proper  nurture  of  a 
child,  and  the  loss  of  her  husband's  care  and  protection  by  a  widow, 
were  held  to  be  pecuniary  loss.  Tilley  v.  >.  Y.,  etc.,  R.  R.  Co.,  24  N. 
Y.  471;  Atchison  v.  Twine,  9  Kan.  350. 

It  is  not  necessary  that  the  survivors  should  have  a  legal  right  to 
support  by  the  deceased,  if  they  have  been  actually  receiving  aid  from 
him  and  have  a  right  to  expect  it.  R.  R.  Co.  v.  Barron,  5  Wall.  (U.  S.) 
DO.  But  on  the  other  hand,  if  the  next  of  kin  are  not  dependent  upon 
<he  deceased  for  support  either  in  part  or  in  whole,  they  can  only  re- 
cover nominal  damages.  Chicago,  etc..  R.  R.  Co.  v.  Sweet.  45  111.  1H7. 

When  the  deceased  is  a  minor  child,  the  parent  recovers  the  value 
ot  the  child's  services  during  minority,  less  the  expense  of  his  sup- 
port. Ewen  v.  R.  R.  Co.,  38  Wis.  013,  623. 


188  QUESTIONS  AND  ANSWERS. 

X.  SLANDER  AND  LIBEL. 
See  Torts,  Ques.  29-35. 

22.  What  fads  are  to  be  considered  by  the  jury  in  assessing 
damages  in  actions  of  slander  and  libel? 

"  They  are  to  consider  the  plaintiff's  injured  feelings  and  tar- 
nished reputation,  taking  into  consideration  the  nature  of  the  im- 
putation, the  extent  of  its  publicity,  the  character,  condition  and 
influence  of  the  parties."  3  Sutherland  on  Damages,  645. 

The  defendant's  social  position  may  be  shown,  upon  the  theory  that 
the  injury  is  increased  when  the  words  are  spoken  by  one  of  influence 
in  the  community.  Humphries  v.  Parker,  52  Me.  502,  507.  So,  too,  the 
wealth  of  the  defendant  may  De  shown.  Trimble  v.  Foster,  87  Mo.  49. 

The  defendant  may  show  facts  tending  to  prove  the  truth  of  the 
words,  although  not  Amounting  to  justification,  to  disprove  malice. 
Huson  v.  Dale,  19  Mich.  17,  36;  s.  c.,  2  Am.  Rep.  66. 


XI.  MALICIOUS  PROSECUTION. 

23.  What  are  the  elements  of  damage  in  actions  for  malicious 
prosecution  ?. 

The  elements  are:  (1)  "  Damages  to  a  man's  fame,  as  if  the 
matter  whereof  he  be  accused  be  scandalous;  (2)  Damages  to  the 
person,  where  a  man  is  put  in  danger  to  lose  his  life  or  limb,  or 
liberty;  (3)  Damages  to  a  man's  property,  as  where  he  is  forced  to 
spend  money  in  necessary  charges  to  acquit  himself  of  the  crime." 
Savile  v.  Koberts,  1  Ld.  Eaym.  374.  (4)  Any  special  damage  may 
also,  of  course,  be  recovered. 

For  injury  to  the  reputation  the  same  elements  are  to  be  con- 
sidered as  are  proper  in  the  case  of  slander  and  libel.  .  Sheldon 
v.  Carpenter,  4  K  Y.  579. 


XII.  SPECIAL  DAMAGES.. 

24.  A.  brings  suit  for  the  wrongful  detention  of  his  horse 
and  seeks  to  recover  damages  for  the  horse's  loss  of  flesh  during 
detention,  without  alleging  the  facts  specially.  Can  he  so  re- 
cover ? 

N"o.  Special  damages  which  may  be  the  natural,  but  are  not 
the  necessary,  results  of  the  act  complained  of  must  be  specially 
alleged  in  order  that  the  defendant  may  know  the  nature  of  the 
claim  against  him.  Stevenson  v.  Smith,  28  Cal.  103;  Roberts  v. 
Graham,  6  Wall.  (U.  S.)  578,  579. 


DAMAGES.  189 

25.  A.,  in  bringing  suit,  claims  to  have  been  damaged  to  the 
amount  of  $1,000,  and  on  the  trial  gets  a  verdict  for  $1,500. 
Can  the  verdict  be  modified? 

The  amount  claimed  by  the  plaintiff  in  his  declaration  is  the 
limit  of  his  recovery,  and  if  a  verdict  is  rendered  for  a  greater 
sum  it  will  be  error,  unless  the  plaintiff  enters  a  remittitur  for 
the  excess.  2  Sedgwick  on  Damages  (8th  ed.),  §  1258;  Enoch  v. 
Mining  &  P.  Co.,  23  W.  Va.  314. 

And  in  cases  where  the  amount  of  the  verdict  does  not  exceed  that 
•demanded,  a  new  trial  may  be  granted  where  the  damages  awarded 
are  so  excessive  as  to  show  passion,  prejudice  or  incorrect  appreciation 
of  the  law  applicable  to  the  case.  Sedgwick  on  Damages  (8th  ed.), 
§§  1320,  1321. 

In  New  York,  however,  the  Court  of  Appeals  will  not  now  consider 
the  question  of  excessive  damages,  in  cases  of  negligence.  Gale  v. 
N.  Y.  C.,  etc.,  R.  R.  Co.,  76  N.  Y.  594;  Link  v.  Sheldon,  136  id.  1,  5. 

A  verdict  may  also  be  set  aside,  where  the  damages  are  insufficient 
on  the  application  of  the  same  principles,  as  in  the  case  of  excessive 
<iaruages.  Sedgwick  on  Damages  (.8th  ed.),  §  1326.  But  see  Pritchard 
v.  Hewitt,  91  Mo.  547;  "  A  new  trial  will  not  be  granted  solely  on  the 
ground  of  the  smallness  of  the  damages  recovered." 

If  no  other  right  is  infringed  by  the  verdict  than  that  of  nominal 
damages,  a  new  trial  will  not  be  granted.  Bui  it  is  otherwise  if 
nominal  damages  are  necessary  to  vindicate  a  contested  right  or  to 
carry  costs.  Eaton  v.  Lyman,  30  Wis.  41. 

XIII.    EVIDENCE. 

26.  A  physician  sues  for  personal  injuries  and  seeks  to  base 
the  amount  of  damages  to  be  recovered  upon  a  statement  showing 
his  earnings  before  and  after  the  injury.      Is  such  evidence  ad- 
missible? 

Such  evidence  would  not  be  admissible  for  the  purpose  stated. 
The  utmost  care  should  be  taken  in  the  manner  in  which  evidence 
is  presented.  Frequently  testimony  which  is  inadmissible  for  one 
purpose  is  unobjectionable  for  other  purposes,  and  here,  this  same 
evidence  would  be  admitted,  if  offered,  not  as  a  measure  of  dam- 
apes,  but  to  show  the  vr.lue  of  the  time  lost  and  the  extent  of  the 
injury  sustained.  It  is  too  uncertain  as  a  basis  for  awarding  dam- 
ages, but  is  of  assistance  to  the  jury  in  determining  the  extent  of 
the  injury.  Logansport  v.  Justice,  74  Ind.  378;  Bierbach  v.  Good- 
year Rubber  Co.,  54  Wis.  208;  s.  c.,  41  Am.  Rep.  19.  See  also 
International,  etc.,  R.  R.  Co.  v.  Irvine,  64  Tex.  529. 


DOMESTIC  RELATIONS. 


I.  MARRIAGE. 

1.  Define  marriage. 

Marriage,  in  the  consideration  of  law,  is  a  civil  contract  whereby 
a  man  and  woman  mutually  engage  with  each  other  to  live  to- 
gether during  life  in  the  relation  of  husband  and  wife.  The  act 
of  marriage  having  been  entered  into  the  word  comes  afterward 
to  denote  the  relation  itself.  Schouler,  Domestic  Relations,  §  22. 

a.     Reality  of  Consent, 

2.  A.  upon  a  return  from  an  excursion  with  B.  and  a  number  of 
friends  in  jest  challenged  B.  to  marry  her.       The  ceremony  was 
thereupon  performed  in  accordance  with  law  by  a  justice  of  the 
peace  who  happened  to  be  present.     Was  there  a  valid  marriage? 

No,  there  was  no  intent  to  enter  into  the  marriage  relation,  and 
the  ceremony,  although  legally  performed,  did  not  effectuate  a 
valid  marriage.  McClurg  v.  Terry,  21  N.  J.  Eq.  225.  The  con- 
sent must  be  in  legal  contemplation  of  marriage.  State  v.  Walker, 
36  Kan.  297,  312,  323.  And  the  parties  to  this  agreement  must 
contemplate  the  present  assumption  of  the  marriage  state.  Peck 
v.  Peck,  12  R.  I.  485,  488. 

3.  A.  and  B.  signed  an  agreement  as  follows:   "  We,  the  under- 
signed, hereby  enter  a  copartnership  on  the  basis  of  the  true  mar- 
riage relation,  which  shall  continue  so  long  as  mutual  affection 
shall  exist"     The  parties  subsequently  lived  together  as  husband 
and  wife.    Does  this  constitute  a  valid  marriage? 

No,  there  was  no  consent  to  enter  the  marital  relation  defined 
by  law.  The  contracting  parties  to  a  marriage  do  not  define  their 
relations  toward  each  other;  they  simply  consent  to  a  new  rela- 
tion, the  rights  and  obligations  of  which  rest,  not  upon  their  agree- 
ment, but  upon  the  general  law  of  the  state.  Peck  v.  Peck,  155 
Mass.  479;  Adams  v.  Palmer,  51  Me.  480,  483. 

4.  A.  and  B.  are  engaged  to  be  married.    B.  stated  that  he  did 
not  believe  in  the  marriage  ceremony,  and  A.  consented  to  waive  it. 
B.  thereupon  placed  upon  her  finger  a  ring,  saying  "  This  is  your 
wedding  ring;  you  are  married."     They  therefore  commenced  liv- 
ing together  as  husband  and  ivife.    Are  the  parties  legally  married? 

Yes,  this  constitutes  a  binding  common-law  marriage,  which  is 
valid  without  solemnization  unless  expressly  invalidated  bv  statute. 
Bissell  v.  Bissell,  55  Barb.  (N.  Y.)  325. 

5.  Would  such  a  marriage  hare  been  binding  without  consum- 
mation ? 

[190] 


DOMESTIC  KELATIOXS.  191 

Yes,  a  consummation  is  not  necessary  to  the  validity  of  marriage 
per  verba  de  praesenti,  but  the  marriage  takes  effect  upon  the 
assumption  of  the  mutual  agreement.  Dumaresly  v.  Fisly,  3  A. 
K.  Marsh.  (Ky.)  368,  377;  Jewell  v.  Jewell,  1  How.  (U.  S.)  219, 
234. 

6.  Can  a  marriage  be  formed  by  a  future  agreement  to  marry, 
followed  by  cohabitation? 

The  weight  of  authority  is  to  the  effect  that  cohabitation  in  this 
instance  is  mere  illicit  intercourse,  and  no  marriage  is  consum- 
mated unless  the  cohabitation  is  with  the  express  purpose  of  con- 
summating the  marriage,  thereby  changing  it  to  a  marriage  per 
verba  de  praesenti.  Chaney  v.  Arnold,  15  N".  Y.  345 ;  Stolz  v. 
Doering,  112  111.  234,  240.  The  cohabitation  is,  however,  prima 
facie  proof  of  a  present  marriage.  Dumaresly  v.  Fisly,  3  A.  K. 
Marsh.  (Ky.)  368.  Some  public  recognition  of  the  fact  of  mar- 
riage must  also  be  made,  to  give  effect  to  an  informal  marriage. 
Maryland  v.  Baldwin,  112  U.  S.  490,  494;  Dalrymple  v.  Dalrymple, 
2  Hag.  Con.  54,  76. 

b.     Solemnization. 

7.  The  statutes  of  the  state  prescribe  certain  forms  and  acts  of 
solemnization  in  regard  to   marriage.     What  effect  does  such  a 
statute  have  upon  a  common-law  marriage? 

Statutes  of  this  character  are  held  to  be  directory  unless  they 
expressly  provide  that  marriages  are  illegal  without  compliance 
with  the  forms  prescribed.  Meister  v.  Moore,  96  U.  S.  76;  Port 
v.  Port,  70  111.  484,  486.  Under  statutes  declaring  marriages  void 
which  are  not  in  conformity  with  its  provisions,  there  is  a  pre- 
sumption of  law  that  the  marriage  is  regular,  and  the  burden  of 
proving  the  contrary  is  upon  the  party  denying  the  marriage. 
Franklin  v.  Lee,  30  Ind.  App.  31.  .. 

c.     Parties  to  the  Marriage  Contract. 
I.    IX    GENERAL. 

8.  What  persons  are  qualified       marry? 

Any  person  of  sufficient  understanding  to  comprehend  the  nature 
of  the  marriage  relation,  above  the  age  of  consent  fixed  by  common 
law  at  fourteen  years  for  males  and  twelve  for  females,  may  enter 
into  a.  contract  of  marriage.  Schouler,  Domestic  Relations. 
§§  15,  20.  Marriages  between  iniants  under  the  age  of  consent 
are  inchoate  and  may  be  disaffirmed  upon  arriving  at  maturity. 
Parton  v.  Hervey,  1  Gray  (Mass.),  119;  Holtz  v.  Dich,  42  Ohio  St. 
23,  29. 

II.    MENTAL    INCAPACITY. 

9.  An  imbecile  over  twenty-one  years  of  age  went  away  secretly 
and  was  married.     Was  the  marriage  valid? 

Xo,  an  imbecile  does  not  possess  a  sufficient  capacity  of  mind 
to  understand  the  nature  of  the  marriage  agreement,  and  is  in- 


192  QUESTIONS  AND  ANSWERS. 

capable  of  binding  himself 'by  his  act.  '  True  v.  Ranney,  21  X.  H. 
52.  Marriage  as  a  civil  contract  like  any  other  contract  requires 
a  sufficient  capacity  of  mind  to  give  intelligent  consent.  Turner  v. 
Meyers,  1  Hag.  Con.  414,  417.  So  an  insane  person  is  incapable 
of  making  a  binding  contract  of  marriage.  Atkinson  v.  Medford, 
46  Me.  510.  Such  a  marriage  is  void,  not  voidable,  though  the 
parties  live  together,  and  although  a  woman  should  marry  a  man 
of  unsound  mind  and  live  with  him  to  his  death,  she  would  not 
thereby  be  entitled  to  dower.  Jenkins  v.  Jenkins,  2  Dana  (Ky.), 
103.  The  burdea  of  proof,  however,  is  upon  the  person  alleging  the 
unsoundness  of  mind,  as  the  law  presumes  all  persons  to  be  of 
sound  mind  until  the  contrary  is  proved.  Banker  v.  Banker,  63 
X.  Y.  409.  A  prior  judgment  of  lunacy  is  not  conclusive  as  to 
the  question  of  insanity  at  the  time  of  marriage.  McClurg  v. 
Barcalow,  60  Ohio  Cir.  Ct.  537. 

III.   CONSANGUINITY    AND    AFFINITY. 

10.  What  is  the  rule  as  to  marriage  between  relatives? 

In  England  the  Statute  of  32  Henry  VIII.  had  the  effect  of 
fixing  the  degrees  of  consanguinity  in  accordance  with  the  Levitical 
rule,  forbidding  marriages  between  relatives  nearer  than  first 
cousins.  This  is  the  common  rule  of  this  country  except  where 
statute  law  has  changed  the  rule.  1  Bishop  on  Marriage,  Divorce 
and  Separation,  §§  737,  749.  This  restriction  of  the  English 
law  extends  to  relationship  by  affinity,  a  rule  which  has  been 
abrogated,  however,  in  this  country  on  the  theory  that  death  of 
the  spouse  is  the  termination  of  all  relationship  by  affinity.  Pad- 
dock v.  Wells,  2  Barb.  Ch.  (X.  Y.)  331.  In  England  the  rule  has 
been  altered  by  Stat.  7,  Edward  VII,  chap.  47,  providing  that  a 
marriage  heretofore  or  hereafter  contracted  between  a  man  and  his 
deceased  wife's  sister  shall  not  be  void  or  voidable  as  a  civil  con- 
tract by  reason  of  such  relationship. 

IV.   PREVIOUS  CHASTITY. 

11.  A  husband  seeks  to  annul  a  marriage  for  incontinence  on 
the  part  of  his  wife  twenty  years  prior. 

(a)  Can  he  succeed? 

(b)  If  the  woman  had  been  pregnant  at  the  time  of  marriage, 
would  it  havs  been  cause  for  annulment? 

(a)  Xo,  the  fraud  which  will  invalidate  a  marriage  is  such  as 
negatives  the  consent  to  be  married  and  must  operate  to  destroy 
'the  intelligent  consent  which  is  required  for  marriage  itself.    Lea- 

vitt  v.  Leavitt,  13  Mich.  452.  And  the  general  rule  is  that  mis- 
representation as  to  previous  character  will  not  avoid  a  marriage. 
1  Bishon  on  Marriage,  Divorce  and  Separation.  §  4 SO. 

(b)  When  a  woman  who  represents  herself  as  chaste  is  pregnant 
at  the  time  of  marriasre.  the  concealment  and   fraud  go  flire^tlv 
t^  the  e=«ence  of  the  marriage  contract  and  afford  cnu«e  for  prmH- 
mont.    Reynolds  v.  Reynolds,  3  Allen  (Mass.),  605,  609.    But  when 


DOMESTIC  RELATIONS.  193 

the  husband  has  been  guilty  of  illicit  intercourse  with  a  woman  and 
is  induced  to  marry  her  by  assurance  that  the  child  is  his,  he  will 
not  be  allowed  to  avoid  the  marriage  even  though  he  is  not  the 
father.  Foss  v.  Foss,  12  Allen  (Mass.),  26.  And  a  presump- 
tion in  law  exists  to  the  effect  that  the  husband  is  the  father  of  the 
child.  Baker  v.  Baker,  13  Cal.  87. 

d.     Duress. 

12.  When  will  duress  avoid  a  marriage? 

The  general  rule  is  that  such  an  amount  of  force  as  might 
naturally  overcome  one's  free  volition  and  inspire  terror  will 
render  the  marriage  null.  Schouler  on  Domestic  Relations,  §  23. 
The  force  need  not  be  physical,  and  may  arise  from  the  relations 
of  the  parties,  as  where  one  acting  as  the  guardian  of  a  young  girl 
compels  her  to  marry  without  her  free  consent.  Harford  v.  Morris, 

2  Hag.  Con.  423. 

13.  A  man  is  lawfully  arrested  on  a  process  for  bastardy  and 
thereupon  marries  the  complainant.    Is  the  marriage  void  as  being 
under  duress? 

If  the  process  is  lawful,  he  is  bound  by  his  act.  State  v.  Davis, 
79  1ST.  C.  603;  Jackson  v.  Winne,  7  Wend.  (N.  Y.)  47.  If,  however, 
the  process  is  void  or  the  imprisonment  unlawful,  the  marriage  may 
be  annulled.  Bassett  v.  Bassett,  9  Bush  (Ky.),  696.  In  general, 
the  test  seems  to  be  whether  from  natural  weakness  or  force  either 
party  is  actually  in  a  state  of  mental  incompetence  to  vesist  pres- 
sure improperly  brought  to  bear.  Portsmouth  v.  PoTtsir.outh, 

3  Eng.  App.  154,  156. 

e.  Conflict  of  Laws. 

14.  7s  the  validity  of  the  marriage  governed  by  the  l*w  of  the 
domicile  of  the  parties  or  the  place  where  it  is  celebrated? 

The  lex  loci  contractus  governs  the  validity  of  the  marriage, 
which  if  legally  contracted  is  good  anywhere,  even  though  it  be 
invalid  by  the  laws  of  the  domicile  of  the  parties.  Commonwealth 
v.  Kenny,  12*0  Mass.  87;  Pearson  v.  Pearson,  51  Cal.  120. 

II.  DIVORCE. 
a.     Legislative  Divorce. 

15.  A  husband  left  his  wife  and  went  into  another  state  where 
by  a  special  act  of  the  legislature  he  was  divorced  from  his  wife. 
Is  such  a  divorce  good? 

Yes.  the  right  to  grant  a  divorce  is  within  the  legislative  power. 
Maynard  v.  Hill,  125  U.  S.  190.  This  power  was  first  recognized 
bv  the  common  law  of  England  as  within  the  power  of  Parliament. 
Cooler  on  Const.  Lim.,  par.  664.  Anc  the  right  has  been  generally 
recognized  by  the  courts  of  this  country.  Cronise  v.  Cronise,  54 


194  QUESTIONS  AND  ANSWERS. 

Pa.  St.  255.  "For  more  than  one  hundred  years  prior  to  the 
Revolution  and  many  years  thereafter  a  legislative  act  was  the  only 
means  of  obtaining  a  divorce  in  the  State  of  Xew  York."  2  Kent, 
Comm.  97. 

16.  Does  a  special  act  of  divorce  impair  the  obligation  of  a  con- 
tract under  the  Constitution  of  the  United  States? 

No,  marriage  is  a  contract  in  its  inception,  but  having  been  en- 
tered into  it  becomes  a  relation  and  determined  by  the  laws  of  the 
state.  Adams  v.  Palmer,  51  Me.  481.  In  discussing  this  question 
the  courte  have  followed  the  dicta  of  Judge  Marshall  and  Judge 
Story  in  Dartmouth  College  v.  Woodward,  4  Wheat.  518,  to  the 
effect  that  a  legislative  divorce  does  not  impair  the  obligation  of 
a  contract  within  the  purview  of  ar  'cle  X  of  the  Federal  Con- 
stitution. In  accordance  with  this  reasoning  it  is  the  rule  that  the 
relative  rights  of  husband  and  wife  are  subject  at  all  times  to 
changes  by  the  laws  of  the  state.  Noel  v.  Ewing.  9  Ind.  37. 
Contra  to  'this  is  the  rule  in  Clark  v.  Clark,  10  X.  H.  380,  that  a 
law  changing  the  grounds  of  divorce  in  such  a  manner  as  to  make 
them  applicable  to  cases  existing  before  the  passage  of  the  law,  was 
retrospective  and  void. 

b.      Jurisdiction. 

17.  A  husband  deserts  his  wife  and  she  establishes  a  residsnce 
in  another  state  and  sues  there  for  divorce. 

(a)  Has  the  court  jurisdiction?    . 

(b)  Can  the  court  decree  alimony? 

(a)  The  general  rule  is  the   domicile  of  the  husband  is  the 
domicile  of  the  wife,  but  when  he  by  committing  an  offense  against 
the  marriage  relation  or  by  dereliction  of  duty  affords  ground  for 
divorce,  the  wife  may  establish  an  independent  domicile.     Ditson 
v.  Ditson,  4  R.  I.  87;  Tolen  v.  Tolen,  2  Blackf.  (Ind.)  406. 

(b)  This  would  depend  upon  whether  the  court  had  jurisdiction 
of  the  person  of  the  defendant.     If  the  defendant  is  not  within 
the  jurisdiction,  the  remedy  is  confined  to  a   dissolution  of   the 
marriage,  and  no  judgment  for  alimony  can  be  enforced  in  any 
other  jurisdiction.     Lytle  v.  Lytle,  48  Ind.  200;  Cooley,   Const. 
Lim.,  par.  406. 

18.  A  wife  deserts  her  husband  and  leaves  the  domicile  of  the 
marriage.     The  husband  thereupon  procures  a  divorce  by  default 
on  the  ground  of  desertion.    Subsequently,  in  the  courts  of  another 
state  the  wife  institutes  a  suit  against  the  husband,  tvith  a  claim 
for  alimony.    The  husband  pleads  in  bar  the  prior  decree.    Is  his 
plea  good? 

Yes,  the  courts  of  the  state  of  the  marriage  domicile  had  full 
power  over  the  marriage  relation  and  its  judgment,  and,  under 
article  IV,  section  1,  of  the  Constitution  of  the  United  States, 


DOMESTIC  RELATIONS.  195 

the  courts  of  other  states  are  obliged  to  give  it  full  faith  and  credit. 
Atherton  v.  Atherton,  181  U.  S.  155.  The  force  of  this  judgment 
depends  upon  the  fact  of  the  domicile  of  matrimony,  and  if  hus- 
band or  wife  desert  the  domicile  of  matrimony  and  establish  an 
independent  domicile  in  another  state  and  under  the  laws  of  the 
latter  state  obtain  a  decree  of  divorce  upon  constructive  service, 
the  courts  will  not  be  obliged  to  give  to  the  judgment  full  faith  and 
credit,  and  the  validity  of  the  judgment  is  simply  a  matter  of 
comity.  Haddock  v.  Haddock,  201  U.  S.  562.  An  exception  to 
this  rule  is  made  in  the  case  where  the  courts  of  a  state  acquire 
jurisdiction  over  both  parties,  even  though  it  has  no  jurisdiction 
over  the  domicile  of  matrimony.  In  that  instance,  the  judgment  of 
the  court  is  entitled  to  full  faith  and  credit  in  the  courts  of  other 
states.  Cheever  v.  Wilson,  9  Wall.  108. 

c.      Cruelty. 

19.  Define  legal  cruelty? 

Legal  cruelty  is  such  conduct  as  will  endanger  life,  limb  or 
-  health  or  .creates  a  reasonable  apprehension  of  bodily  hurt.    Odom 
v.  Odom,  36  Ga.  386. 

20.  A  husband  systematically  treated  his  wife  in  such  a.  manner 
as  to  make  her  life  unhappy,  although  no  physical  force  was  used. 
His    conduct   seriously   imperiled   her   health.     Is   such    conduct 
ground  for  divorce  upon  an  allegation  of  cruelty  f 

Yes,  if  force,  either  physical  or  moral,  is  used  to  such  an  extent 
as  to  endanger  the  health,  it  is  legal  cruelty.  Kelly  v.  Kelly,  2 
P.  &  D.  31;  Carpenter  v.  Carpenter,  30  Kan.  744.  Mere  tur- 
bulence of  temper  or  petulance  is  not  sufficient.  Evans  v.  Evans, 
1  Hag.  Con.  35.  Nor  will  conduct  which  inflicts  mental  suffer- 
ing, however  grievous,  justify  a  divorce  if  it  is  not  accompanied 
by  injury  to  health.  Barnes  v.  Barnes,  95  Cal.  171. 

d.     Desertion. 

21.  A  husband  "being  unable  to  support  his  wife  she  left  him 
by  consent  and  all  communication  ceased.     Is  she  entitled  to  a 
decree  on  the  ground  of  desertion? 

Xo,  the  abandonment  must  .be  wilful  and  with  intent  to  desert 
the  wife.  Ingersoll  v.  Ingersoll,  49  Pa.  St.  249.  For  this  rea- 
son a  deed  of  separation  has  been  held  a  good  defense  to  a  suit 
for  divorce  on  the  grounds  of  desertion.  Crabb  v.  Crabb,  L.  R., 
1  P.  &  D.  600. 

22.  A  statute  provides  that  a  divorce  may  be  granted  upon  two 
years'  desertion.     A  wife  deserts  her  husband  and  after  ten  years 
offers  to  return  and  live  with  him.    He  subsequently  petitions  for 
a  divorce.    Is  the  repentance  and  offer  to  return  a  bar  to  his  suit  ? 

No,  the  desertion  having  extended  over  the  statutory  period,  the 
husband  is  not  obliged  to  receive  back  his  wife,  nor  does  her  je- 


196  QUESTIONS  AND  ANSWERS. 

pentance,,  obliterate  the  offense.  Benkert  v.  Benkert,  32  Cal.  467. 
If  the  repentance  had  occurred  before  the  expiration  of  the  two 
years,  it  would  have  been  a  defense  to  the  action.  Gaillard  v. 
Gaillard,  23  Miss.  152. 

23.  When  will  ill  treatment  be  a  defense  to  a  suit  for  divorce 
upon  the  ground  of  desertion? 

Ill  treatment  on  the  part  of  the  complainant  may  justify  the 
defendant  in  leaving  the  house  of  the  complainant,  even  though 
not  exercised  to  such  an  extent  as  to  justify  the  defendant  in  seek- 
ing a  divorce  on  the  ground  of  cruelty.  Lyster  v.  Lyster,  111  Mass. 
327.  But  mere  incompatibility  of  temper  will  not  justify  a  deser- 
tion. Boyce  v.  Boyce,  23  N.  J.  Eq.  337,  348. 

e.     Default,  Collusion  and  Connivance. 
1.    DEFAULT. 

24.  What  is  the  effect  on  default  in  an  action  for  divorce f 
Default  has  no  effect  whatever;  it  neither  supersedes  the  burden 

of  proof  nor  lightens  the  burden  resting  on  the  complainant  to 
prove  the  allegations  of  his  complaint.  Mortimer  v.  Mortimer,  2 
Hag.  Con.  310.  Even  the  actual  confession  of  a  party  will  not  be 
sufficient  if  unsupported  by  other  evidence.  Holland  v.  Holland, 
2  Mass.  154.  In  a  subsequent  case  it  was  held  that  if  the  confes- 
sion is  corroborated  by  facts  which  preclude  a  possibility  of  col- 
lusion, the  confession  may  be  sufficient.  Billings  v.  Billings,  11 
Pick.  461. 

2.    COLLUSION. 

25.  In  a  case  where  justifiable  cause  for  divorce  exists,  the  par- 
ties enter  into  an  agreement  to  procure  a  divorce.     Is  the  agree- 
ment a  bar  to  the  suit? 

Yes,  an  agreement  of  this  nature  is  held  to  be  conclusive  proof 
of  collusion.  Churchyard  v.  Churchyard,  L.  R.  1895,"  P.  &  D.  7. 
And  where  a  person  commits  an  offense  for  the  purpose  of  furnish- 
ing ground  for  divorce,  the  court  will  presume  collusion.  Todd  v. 
Todd,  L.  E.,  1  P.  &  M.  121. 

3.    CONNIVANCE. 

26.  A   husband,  without  any  agreement  with   his  wife,  places 
temptation  in  her  way  and  then  causes  her  actions  to  be  watched 
for  the  purpose  of  obtaining  a  divorce.    Are  his  actions  a  bar  to 
the  suit? 

Yes,  the  law  forbids  a  husband  to  connive  for  his  wife's  down- 
fall and  then  take  advantage  of  it  in  a  suit  for  divorce.  Morrison 
v.  Morrison,  136  Mass.  310.  Mere  knowledge  of  the  actions  of  the 
wife  without  encouragement  do  not  constitute  connivance.  Coch- 
ran  v.  Cochran,  35  Iowa,  477 ;  Wilson  v.  Wilson,  154  Mass.  194. 


DOMESTIC  RELATIONS.  197 

f.      Condonation  and  Recrimination. 

27..  //  a  husband  knowing  of  an  offense  which  would  justify  a 
divorce  condones  the  act,  can  he  thereafter  sue  for  divorce,  alleg- 
ing this  act  as  a  ground  for  his  action? 

No,  the  condonation  in  law  affords  a  presumption  of  forgiveness 
and  bars  a  suit,  Shackleton  v.  Shackleton,  48  N".  J.  Eq.  364,  the 
presumption  of  forgiveness  by  condonation,  however,  extending 
only  to  offenses  known  to  the  other  party.  Alexander  v.  Alexander, 
L.  R.,  8  P.  &  D.  146.  The  defense  of  condonation  is  based  upon 
the  implication  that  the  offense  will  not  be  repeated,  and  a  subse- 
quent breach  revives  the  original  cause  of  action.  Bobbins  v.  Rob- 
bins,  100  Mass.  150. 

28.  A  husband  sues  for  divorce,  alleging  the  adultery  of  his  wife. 
She  sets  up  the  defense  of  legal  cruelty.     Both  allegations  are 
proved.    What  judgment  should  be  given? 

The  petition  of  divorce  should  be  dismissed.  It  is  the  universal 
law  that  recrimination  is  accepted  as  a  valid  defense  for  a  petition 
to  divorce.  1  Bishop  on  Marriage,  Divorce  and  Separation,  §  338. 
And  this  without  regard  to  the  priority  of  the  offense,  so  long  as 
they  are  both  recognized  as  causes  for  divorce.  Pease  v.  Pease,  72 
Wis.  136.  The  rule  of  condonation  applies  also  to  the  defense  of 
recrimination  and  the  condoned  offenses  may  not  be  set  up  in  bar. 
Gumming  v.  Gumming,  135  Mass.  386. 

III.  HUSBAND  AND  WIFE. 

a.      The  Incapacity  of  a  Married  Woman  at  Common  Law  to  Con- 
tract or  Convey  Property. 

29.  What  is  the  effect  of  the  contracts  of  a  married  woman  at 
common  law?     Are  they  void  or  voidable? 

They  are  void,  and  no  suit  against  her  upon  contract  will  lie. 
Lee  v.  Lanahan,  59  Me.  478.  And  if,  subsequent  to  her  husband's 
death,  she  makes  a  new  promise  to  fulfill  an  engagement  entered 
into1  during  coverture,  she  will  not  be  bound,  because  the  original 
engagement  is  void,  and  therefore  a  new  promise  cannot  raise  an 
assumpsit.  Lloyd  v.  Lee,  1  Strange,  94.  An  exception  to  this  rule 
occurs  in  the  instance  of  a  wife  deserted  and  renounced  by  her 
husband,  in  which  instance  she  is  recognized  in  law  as  a  feme 
sole.  Gregory  v.  Pierce,  4  Mete.  (Mass.)  478;  Moore  v.  Stevenson, 
27  Conn.  14. 

30.  A  married  woman  bought  a  tract  of  land  and  mortgaged  it 
back  to  the  grantor  for  part  of  the  purchase  money.     Was  the 
mortgage  deed  good? 

Xo.  a  feme  covert  is  incapable  of  conveying  estate  at  common 
law  and  her  deed  is  void.  Coke  Littleton,  42 ;  Concord  Bank 


198  QUESTIONS  AND  ANSWERS. 

v.  Bellis,  10  Gush.  276.  If  the  husband  had  joined  in  the  deed, 
an  effectual  conveyance  of  the  land  would  have  been  made.  Bart- 
lett  v.  Bartlett,  4  Allen,  440. 

31.  Can  equity  afford  relief  in  validating  a  deed  of  a  marne-d 
woman? 

Xo,  the  deed  is  void  ab  initio,  and  therefore  equity  can  obtain 
no  jurisdiction  to  afford  relief.  Townsley  v.  Chapin,  12  Allen.  476. 
An  exception  to  this  occurs  in  transactions  which  the  husband  is 
a  party  to  and  by  mistake  fails  to  sign  the  deed,  in  which  instance 
a  court  o'f  equity  may  reform  the  deed  and  compel  him  to  supply 
his  signature.  Kennard  v.  George,  44  N.  H.  440.  The  same  gen- 
eral rule  applies  to  a  devise  by  a  feme  covert.  Her  devise  is  void 
even  though  the  husband  assent.  Marston  v.  Norton,  5  N.  H.  205. 

32.  Can  a  married  woman  enforce  a  suit  at  law? 

Xo,  a  married  woman  at  common  law  was  incapable  of  becom- 
ing a  party  to  an  action  at  law.  Boggett  v.  Frier,  11  East,  301. 
An  exception  to  this  rule  occurs  where  a  wife  by  abandonment  or 
divorce  a  mensa  et  thoro  acquires  the  rights  to  contract  as  a  feme 
sole,  when  she  may  enforce  her  rights  at  law.  .  Pierce  v.  Burnham, 
4  Mete.  (Mass.)  303;  Gregory  v.  Paul,  15  Mass.  31. 

b.     The  Husband's  Right  to  the  Property  of  his  Wife. 
1.    REAL  ESTATE. 

33.  What  right  has  the  husband  in  the  real  estate  of  his  wife? 

At  common  law  the  husband  upon  marriage  was  seized  of  the 
freehold  in  the  real  estate  of  his  wife  and  the  usufruct  was  his 
during  their  joint  lives,  and  his  use  was  liable  for  his  debts.  Litch- 
field  v.  Cudworth,  15  Pick.  23.  This  estate  terminated  at  the 
death  of  the  wife  unless  a  child  was  born  alive  during  coverture 
when  the  husband  had  an  estate  by  curtesy  for  life. 

2.    PERSONAL  ESTATE. 

34.  What  are  the  rights  of  the  husband  in  the  chattels  of  the 
wife? 

The  personal  property  of  the  wife  held  in  her  own  right  vested 
absolutely  in  the  husband,  who  could  dispose  of  it  as  he  pleased. 
Jordan  v.  Jordan,  52  Me.  320;  Blanchard  v.  Blood,  2  Barb.  (N.  Y.) 
352.  The  right  to  her  choses  in  action  is  not  absolute,  but  condi- 
tioned upon  reducing  them  to  possession  during  coverture.  Trott  v. 
Colwell,  31  Pa.  St.  228,  232;  Hayward  v.  Hayward.  20  Pick. 
517,  520.  If  the  wife  dies  before  the  choses  in  action  are  reduced 
to  possession,  this  right  in  the  husband  terminates  and  the  choses 
go  to  the  representative  of  the  wife.  Leakey  v.  Maupin,  10  Mo. 
368.  And  likewise  if  the  husband  dies  first,  the  choses  in  action 
remain  the  property  of  the  wife  and  his  personal  representatives 
have  no  title  to  them.  Needles  v.  Needles,  7  Ohio  St.  432. 


DOMESTIC  RELATIONS.  199 

c.      Wife's  Separate  Estate  in  Equity. 

35.  How  is  the  separate  estate  of  a  married  woman  created? 

A  wife's  separate  estate  in  equity  is  created  by  a  trust  vesting 
in  the  wife  the  equitable  title  for  her  sole  and  separate  use. 
Bispham,  Prin.  of  Eq.,  par.  99.  It  is  not  necessary  in  the  crea- 
tion of  such  a  trust  for  a  married  woman  to  name  a  trustee,  for 
when  no  trustee  is  named  the  husband  will  be  considered  the 
trustee.  Bennet  v.  Davis,  2  P.  Wms.  316. 

36.  How  may  a  wife  alienate  and  bind  her  separate  estate? 
The  wife  may  alienate  her  separate  estate  by  deed  or  writing 

which  operates  as  a  direction  to  the  trustee  to  convey  the  legal 
estate.  Taylor  v.  Meads,  4  De  Gex,  J.  &  Sm.  597.  'The  power 
to  bind  her  separate  estate  is  by  the  jurisdiction  of  equity,  which 
will  hold  the  specific  property  liable  for  her  express  and  implied 
engagements.  Murray  v.  Barlee,  3  Mylne  &  Keen,  209.  Such  a 
contract  must  be  for  the  benefit  of  the  separate  estate^  or  the  in- 
tention to  bind  the  separate  estate  must  appear  in  the  contract. 
Yale  v.  Dederer,  22  N.  Y.  451. 

37.  How  may  a  husband  convey  property  to  the  wife? 

A  husband  and  wife  are  considered  as  one  at  common  law,  and 
the  only  means  of  conveying  title  was  by  conveying  to  a  third 
person  who  conveyed  to  the  wife.  Jewell  v.  Porter,  31  N.  H.  34. 
Courts  of  equity  have  in  some  instances  qualified  this  rule  by  up- 
holding conveyances  and  contracts  between  husband  and  wife  which 
were  meritorious  in  their  nature.  Shephard  v.  Shephard,  7  Johns. 
57;  Slanning  v.  Style,  3  P.  Wms.  337.  -Under  modern  statutes 
giving  the  right  to  hold  and  possess  property  as  a  feme  sole,  a 
husband  may  convey  directly  to  the  wife  and  vice  versa.  Allen  v. 
Hooper,  50  Me.  371. 

d.      Certain  Bights  and  Equities  of  a  Wife  under  Modern  Statutes. 
1.    RIGHT  TO   CONTRACT. 

38.  A  statute  provided  that  a  married  woman  may  contract,  sell, 
mortgage  and  convey  her  estate  in  the  same  manner  as  if  she  were 
single.     A  married  woman  entered  into  a  contract  of  suretyship 
for  the  benefit  of  a  corporation  in  which  she  was  a  stockholder. 
Is  the  contract  enforceable? 

No,  the  contract  is  not  one  in  which  a  married  woman  contracts 
in  respect  to  her  own  property ;  she  pledges  merely  her  own  respon- 
sibility. The  test  is  whether  the  contract  deals  with  or  is  for  the 
benefit  of  the  individual  estate  of  the  feme  covert.  The  fact 
that  she  held  stock  in  the  corporation  would  not  alter  the  rule 
because  the  law  views  the  corporation  as  a  separate  legal  identitv. 
Russell  v.  People's  Sav.  Bank.  39  Mich.  671.  If  the  statute  had 
Driven  a  married  woman  the  full  right  to  contract  as  a  feme  sole, 


200  QUESTIONS  AXD  ANSWERS. 

the  contract  of  suretyship  would  have  been  enforceable.  Hart  v. 
Grigsby,  14  Bush  (Ky.),  542.  It  is  the  general  rule  under  the 
various  statutes  removing  the  disqualifications  of  coverture,-  that 
the  common-law  doctrine  prevails,  so  far  as  it  has  not  been  changed 
by  the  express  provisions  of  a  statute.  Swift  v.  Luce,  27  Me.  285. 

39.  A  married  woman  gives  a  note  for  stock  purchased  by  her 
for  a  farm  which  was  sold  under  a  statute  allowing  a  feme  covert 
to  own  property  without  the  intercession  of  the  trustee,  when  con- 
veyed to  her  sole  and  separate  use.    Is  she  liable  on  the  note? 

Yes,  the  right  to  hold  property  necessarily  implies  the  right  to 
enter  into  contracts  for  the  benefit  of  the  property  so  held.  Batch- 
elder  v.  Sargent,  47  N.  H.  262.  And  under  the  same  statute  it 
has  been  held  that  a  married  woman  was  liable  upon  a  note  for 
part  of  the  purchase  price.  Messer  v.  Smyth,  58  N.  H.  298. 

2.   EIGHT  TO   MAINTAIN   SUIT. 

40.  Can  a  married  woman  sue  for  injuries  to  property  held  in 
her  own  name? 

Yes,  the  general,  rule  under  statutes  allowing  a  feme  covert 
to  own  property  in  her  own  name  is  that  she  can  sue  for  injuries 
to  her  property  as  a  feme  sole.-  Schouler  on  Domestic  Eelations, 
§  158;  Ackley  v.  Tarbox,  31  N.  Y.  564.  And  when  she  is  allowed 
to  sue  alone,  a  joinder  of  the  husband  is  not  only  unnecessary,  but 
improper.  Wright  v.  Burroughs,  61  Vt.  390. 

3.    SEPARATE  EARNINGS. 

41.  What  are  the  wife's  rights  in  her  earnings  under  modern 
statutes,  allowing  her  to  hold  property  in  her  own  name? 

The  right  to  hold  property  does  not  extend  by  implication  to  the 
wife's  earnings.  In  this  she  is  presumed  to  act  for  and  in  behalf 
of  her  husband.  Merrill  v.  Smith,  37  Me.  394.  The  general  policy 
of  the  law  is  not  in  favor  of  the  abandonment  of  the  matrimonial 
domicile  by  the  wife  for  the  purpose  of  acquiring  earnings  for  her 
separate  use.  Douglas  v.  Gausman,  68  111.  170. 

4.    RIGHT   OF    HUSBAND   TO    SUE   WIFE   AND   VICE   VERSA. 

42.  Can  an  action  at  law  between  husband  and  wife  be  enforced? 

At  common  law  the  rule  was  firmly  fixed  that  no  such  suit  could 
be  maintained.  Phillips  v.  Barnet,  L.  E.,  1  Q.  B.  436.  Modern 
statutes  have  changed  this  rule  so  far  as  to  allow  suits  to  be  brought 
between  husband  and  wife  in  respect  to  property  held  in  the  wife's 
own  name.  Larison  v.  Larison,  9  111.  App.  27,  32.  Even  now 
this  right  is  confined  strictly  to  actions  relating  to  the  sole  and 
separate  property  of  the  wife,  and  the  rule  of  the  common  law 
applies  to  all  other  actions.  Logendyke  v.  Logendyke,  44  Barb. 
(X.  Y.)  366. 


DOMESTIC  RELATIONS.  201 

e.  Liability  of   a   Husband   for   Purchases   of   Ms  Wife  upon  his 

Credit 

43.  Action  is  brought  against  a  husband  for  jewelry  bought  by 
the  wife.     What  must  the  plaintiff  prove  in  order  to  recover? 

The  plaintiff  must  prove  that  the  husband  expressly  authorized 
the  purchases  or  that  the  articles  were  necessaries.  Raynes  v.  Ben- 
nett, 114  Mass.  424.  The  authority  of  a  wife  to  pledge  her  hus- 
band's credit  except  for  necessaries  depends  upon  her  authority  as 
his  agent.  Lane  v.  Ironmonger,  13  M.  &  W.  368.  In  the  purchase 
of  necessaries  she  may  pledge  her  husband's  credit  without  regard 
to  the  scope  of  her  authority  as  an  agent.  Read  v.  Legard,  & 
Exch.  636. 

f.  Eights  and   Liabilities   of  Husband   and  Wife   Independent  of 

Contract. 

1.   TORTS. 

44.  What  is  the  common-law  rule  as  to  the  liability  of  the  hus- 
band for  the  torts  of  his  wife? 

If  the  tort  was  committed  in  the  presence  of  the  husband  and 
by  his  direction,  he  alone  is  liable.  2  Kent,  Comm.  149.  If  com- 
mitted in  the  presence  of  the  husband  there  is  a  prima  facie  pre- 
sumption that  it  was  committed  under  his  coercion.  Marshall  v. 
Oakes,  51  Me.  308.  If  the  tort  was  committed  by  the  wife  alone 
and  without  the  presence  or  concurrence  of  the  husband,  she  alone 
will  be  held  liable.  Head  v.  Briscoe,  5  Car.  &  P.  484. 

45.  Who  may  recover  for  a  tort  to  the  wife? 

If  the  cause  of  action  is  the  personal  suffering  and  injury  to 
the  wife,  the  husband  and  wife  must  join  in  the  suit.  Laughlin  v. 
Eaton,  54  Me.  156.  An  exception  to  this  rule  occurs  in  an  action 
for-  the  alienation  of  the  husband's  affection.  The  right  of  the 
wife  to  sue  in  her  own  name  for  this  injury  has  long  been  recog- 
nized. Foot  v.  Card,  58  Conn.  1.  And  under  modern  statutes 
giving  the  rights  of  a  feme  sole,  she  is  generally  recognized  as  a 
separate  legal  identity  and  may  sue  upon  all  torts  in  her  own  name. 
Harris  v.  Webster,  58  N.  H.  481. 

2.    CRIMES   OF  A    MARRIED  WOMAN. 

46.  At  the  trial  of  a  married  woman  for  assault  in  the  presence 
of  her  husband,  the  defense  requested  the  court  to  charge  that  she 
W'as  presumed  to  act  under  her  husband's  control.     This  request 
was  refused.     Ifos  the  court  correct  in  its  ruling? 

Xo,  when  a  crime  is  committed  by  a  wife  in  the  presence  of  her 
husband,  she  is  entitled  to  the  benefit  of  the  presumption  that  she 
was  under  his  coercion.  Commonwealth  v.  Egan,  103  Mn??.  71. 
Xo  such  presumption  exists  in  the  case  of  nyirder  and  certain  other 


202  QUESTIONS  AND  ANSWERS. 

heinous  crimes.  The  line  of  demarcation  is  not  clearly  defined, 
but  in  the  crime  of  murder  the  law  is  well  established  that  a  wife 
will  not  be  excused  from  her  crime,  although  acting  under  the  com- 
pulsion of  her  husband.  Bibb  v.  State,  94  Ala.  31. 

3.    HUSBAND  AND  WIFE  AS  WITNESSES  FOR  AND  AGAINST  EACH 

OTHER. 

47.  Are  husband  and  wife  competent  witnesses  for  and  against 
each  other? 

The  general  rule  at  common  law  was  that  coverture  disqualified 
both  declarations  and  testimony  in  person  (1  Greenl.  Ev.,  par. 
334),  except  when  the  crime  is  committed  by  husband  or  wife 
against  the  other,  when  the  rule  does  not  apply.  Whi])p  v.  State, 
30  Ohio  St.  87.  The  prevailing  tendency  of  modern  statutes 
and  rulings  of  courts  has  been  to  remove  the  disqualifications  ex- 
cept upon  matters  of  confidence  in  the  marital-  relation.  Schouler 
on  Domestic  Eelations,  par.  53. 

IV.  PARENT  AND  CHILD. 

a.      The  Bight   of  Custody. 

48.  Define  the  right  of  the  parent  to  the  custody  of  the  child? 
The  father  is  the  natural  and  prima  facie  guardian  of  the  child. 

Upon  him  rests  the  obligation  of  support  and  -from  .that  obligation 
there  springs  the  reciprocal  right  to  its  custody  and  control. 
Chapsky  v.  Wood,  26  Kan.  650.  This  right  of  the  father  passes 
upon  his  death  to  the  mother.  Hammond  v.  Corbett,  50  N".  H. 
501.  The  right  in  either  parent  is  relative  and  may  be  forfeited 
by  reason  of  the  parent  being  an  unfit  person  to  intrust  with  the 
custody  of  the  child,  and  may  again  be  assumed  by  proving  com- 
petency to  properly  care  for  the  child.  Farnham  v.  Pierce,  141 
Mass.  203. 

49.  What  right  has  the  parent  in  the  earnings  of  a  minor  child? 

The* right  of  a  parent  to  the  earnings  of  a  minor  child  is  abso- 
lute. Benson  v.  Eemington,  2  Mass.  113.  Except  (1)  when 
waived  by  the  voluntary  emancipation  of  the  minor  child.  Atwood 
v.  Holcomb,  39  Oonn.  270.  (2)  In  the  case  of  a  female  child  by  a 
legal  marriage.  Aldrich  v.  Bennett,  63  N.  H.  415.  (3)  If  an 
infant  son  marry,  even  without  his  parents'  consent,  he  is  entitled 
to  his  earnings  so.  far  as  they  are  necessary  to  the  support  of  him- 
self and  family.  Commonwealth  v.  Graham,  157  Mass.  73. 

50.  A  daughter  after  arriving  at  the  age  of  twenty-one  years  con- 
tinues during  life  in  her  father's  family  and  renders  services  with 
no  agreement  or  understanding  in  regard  to  compensation.     In  a 
suit  against  the  parent,  can  she  recover? 

No,  the  law  presumes  that  a  continuance  of  the  relation  of 
parent  and  child  exist*,  rather  than  the  relation  of  debtor  and 


DOMESTIC  RELATIONS.  203 

creditor.  Hunger  v.  Munger,  33  N.  H.  581;  Candor's  Appeal,  5 
W.  &  .S.  (Pa.)  513.  This  presumption  may  be  overcome  by  proof 
of  an  express  agreement  to  pay  for  the  services  fendered.  Put- 
nam v.  Town,  34  Vt.  429.  And  il  a  minor  child  is  emancipated, 
he  may  enter  into  such  an  express  agreement,  and  the  parent  will 
then  be  equally  bound  as  a  stranger.  Hall  v.  Hall,  44  N.  H.  293. 

"b.      The  Parent's  Liability  for  Necessaries  Furnished  to  his  Minor 

Child. 

51.  A  daughter  of  seventeen,  tvhile  absent  from  home,  became 
sick  and  at  her  request  was  attended  by  the  plaintiff  as  her  phy- 
sician.    In  a  suit  against  the  father,  can  he  recover? 

Yes,  irrespective  of  statutes  parents  aro  required  to  furnish  sup- 
port and  necessaries  for  their  minor  child,  and  a  promise  to  pay  in 
favor  of  a  third  person  may  be  inferred  from  the  legal  duty  im- 
posed. Porter  v.  Powell,  79  Iowa,  151. 

c.  Torts  to  the  Child. 

52.  A  child  is  injured  by  an  ugly  horse  owned  by  a  third  person 
and  as  a  result  the  father  is  put  to  expense  in  the  care  and  cure  of 
the  child. 

(a)  Can  he  recover  for  such  loss? 

(b)  Can  he  recover  for  the  loss  of  services  of  the  child? 

(a)  The  obligation  to  care  for  the  child  being  placed  upon  the 
father,  he  is  entitled  to  be  indemnified  for  any  expense  caused  by 
the  negligent  act  of  another.     Dennis  v.  Clark,  2  Gush.  347. 

(b)  If  the  injury  resulted  in  a  loss  of  services,  even  though  the 
child  recovers  damages  for  his  personal  injuries,  the  father  may 
collect  the  value  of  the  services  lost.     Wilton  Y.  Middlesex  R.  R., 
125  Mass.  130.       The    English    doctrine    recognizes   the    loss    of 
services  as  the  sole  right  of  action  and  precludes  a  recovery  unless 
based  upon  actual  loss  of  services.     Grinnell  v.  Wells,  7  Man.  &  G. 
1033. 

d.  Torts  of  the  Child. 

53.  When  is  a  parent  liable  for  the  tort  of  a  child? 

A  father  is  liable  for  the  injuries  occasioned  by  the  infant  when 
acting  with  the  direct  sanction  and  participation  of  the  parent  or 
in  his  service  or  employment.  Schouler  on  Domestic  Relations, 
par.  263.  And  if  a  parent  allows  his  child  to  perform  acts  liable 
to  result  in  damages  and  an  injury  results,  the  parent  may  be  held 
liable.  Hoverson  v.  Noker,  60  Wis.  511.  The  parent  cannot  be 
held  liable  for  injury  caused  by  a  minor  child  without  the  consent 
or  sanction  of  the  parent.  Hagerty  v.  Powers,  66  Cal.  368. 

e.     Illegitimate  Children. 

54.  What  are  the  disabilities  of  illegitimate  children  at  common 
law? 

An  illegitimate  child  was  considered  at  common  law  ns  mill! us 
filius  with  no  rights  except  those  which  he  acquired  and  without 


204  QUESTIONS  AND  ANSWERS. 

capacity  of  inheritance  either  from  his  father  or  his  mother. 
Schouler  on  Domestic  Kelations,  §  276.  The  mother  or  the  puta- 
tive father  of  an  illegitimate  child  was  barred  from  inheriting 
from  him,  and  he  can  have  no  heirs  except  those  of  his  own  body. 
2  Kent,  Comm.  212;  Cooley  v.  Dewey,  4  Pick.  93.  Under  the 
modern  American  rulings  and  statutes,  the  disabilities  of  an 
illegitimate  child  have  in  part  been  removed.  The  doctrine  that 
subsequent  marriage  of  the  father  and  mother  legitimizes  the  child 
born  out  of  wedlock  is  universally  accepted.  Miller  v.  Miller,  91 
N".  Y.  315;  Williams  v.  Williams,  11* Lea  (Tenn.),  652.  And  it  is 
generally  held  that  an  illegitimate  child  and  his  mother  may  in- 
herit from  each  other.  Heath  v.  White,  5  Conn.  228;  Keeler  v. 
Dawson,  73  Mich.  600. 

V.  INFANTS.     • 

a.     The  Civil  Bights  and  Liabilities  of  an  Infant. 
1.    CAPACITY   TO    ACT   AS   A   PUBLIC    OFFICER. 

55.  To  what  extent  is  an  infant  disqualified  from  holding  office? 
The  weight  of  authority  is  to  the  effect  that  an  infant  can  hold 

no  office  where  judgment,  discretion  and  skill  are  required.  Gold- 
ing's  Petition,  57  N.  H.  146.  Nor  an  office  requiring  personal  re- 
ceipt and  disbursement  of  money.  Claridge  v.  Evelyn,  5  B.  &  Aid. 
81.  An  infant  may  act  when  the  office  is  ministerial  and  requires 
no  discretion  or  judgment.  Moore  v.  Graves,  3  N.  H.  408. 

2.    LIABILITY   FOR   CRIME. 

56.  State  the  rule  as  to  infants  liable  for  crime. 

A  child  under  seven  years  of  age  is  conclusively  presumed  in- 
capable of  crime.  Between  seven  and  fourteen  years  only  prima 
facie  so,  and  above  the  age  of  fourteen  is  presumed  capable  like 
any  other  person.  1  Bishop,  New  Grim.  Law,  368.  When  an 
infant  under  fourteen  years  of  age  is  charged  with  crime,  in  order 
to  convict,  the  jury  should  be  satisfied  that  the  infant  knew  the 
distinction  between  right  and  wrong  a?  to  the  particular  offense. 
Willis  v.  State,  89  Ga.  188.  The  crime  of  rape  is  an  exception  to- 
the  general  rule,  in  that  under  fourteen  years  there  is  a  conclusive 
presumption  of  an  incapacity  to  commit  the  crime.  1  Bishop 
New  Grim.  Law,  373.  The  courts  of  several  states,  following  the 
lead  of  Commonwealth  v.  Green,  2  Pick.  380.  have  held  that  the 
presumption  is  onlv  prima  facie  and  not  conclusive,  diminishing  in 
force  with  advancing  years.  Williams  v.  State,  14  Ohio,  222 ;. 
Wagoner  v.  State,  5  Lea  (Tenn.)  352. 

3.    LIABILITY  OF  AX   INFANT   FOR   HIS  TORTS. 

57.  An  infant  of  tirdrp  years  shot  a  schoolmate  irith  an  arrow, 
thereby  causing  a  loss  of  sight  of  an  ei/c.     Is  he  liable  for  his  act? 

Yes,  the  law  imposes  upon  an  infant  equally  with  nn  adult  a  liabil- 
ity for  his  tortious  acts.  Bullock  v.  Babcock,  3  Wend.  (X.  Y.)  391. 


DOMESTIC  RELATIONS.  205 

And  so  an  infant  of  only  seven  has  been  held  liable  for  trespass  for 
breaking  down  the  shrubbery  in  a  neighbor's  yard.  Huchting  v. 
Engel,  17  Wis.  237. 

A  distinction  exists  between  pure  torts  and  torts  in  connection  -.vith 
contract.  Although  the  decisions  are  not  uniform  the  principle  appears 
to  be  that  if  the  substantive  ground  or  action  is  a  breach  of  contract 
the  infant  cannot  be  charged  by  declaring  on  a  tort.  Caswell  v.  Parker, 
96  Me.  39 ;  Prescott  v.  Norris,  32  N.  H.  101.  But  if  the  injury  is  not  a 
breach  of  contract,  but  a  distinct  wrong  in  itself,  although  connected 
with  a  contract,  the  infant  is  liable..  For  instance,  in  a  contract  of 
bailment,  so  long  as  the  infant  keeps  within  the  scope  of  the  bailment, 
he  is  not  liable  for  his  negligence  or  lack  of  skill,  but  when  he  departs 
from  the  object  of  his  bailment  and  commits  a  positive  and  wilful  tort 
he  is  liable.  Towne  v.  Wiley,  23  Vt.  355. 

4.    LIABILITY    OF    AX    IXFAXT    FOR   NECESSARIES. 

58.  An  infant  contracts  for  lodging  during  the  college  year  at 
ten  dollars  a  week.     He  subsequently  ceases  to  occupy  the  room. 
Can  he  be  held  liable  for  the  remainder  of  the  year? 

Xo,  the  liability  of  an.  infant  for  necessaries  arises  not  -from 
the  contract,  but  from  the  duty  imposed  by  law.  Necessaries  must 
be  actually  furnished,  and  the  agreed  prices  are  not  the  basis  of 
recovery,  but  the  fair  and  reasonable  value  of  the  necessaries.  So 
long  as  the  infant  occupied  the  room,  it  was  a  necessary,  and  he 
was  liable  for  its  reasonable  value,  but  the  executorv  contract  was 
capable  of  disaffirmance  like  any  other  contract.  Gregory  v.  Lee, 
64  Conn.  407. 

59.  Can  an  infant  be  held  liable  for  necessary  repairs  of  a  house 
of  which  he  is  owner? 

No,  the  necessaries  must  be  for  his  personal  use,  and  although 
a  contract  may  be  for  the  benefit  of  his. property  h?  may  disaffirm 
it.  Tupper  v*  Cad  well,  12  Mete.  (Mass.)  559. 

60.  What  are  included  in  "necessaries?" 

Schouler  defines  the  five  leading  elements  in  the  doctrine  of 
necessaries  to  be  food,  lodging,  clothes,  medical  attendance  and 
education.  Schouler  on  Domestic  Relations,  par.  415. 

In  general  it  is  considered  a  question  of  fact  to  be  decided  in 
each  case.  Ryder  v.  Wombell,  L.  R.,  3  Exch.  90.  The  extent  and 
scope  of  the  doctrine  are  determined  by  the  circumstances  and  con- 
dition in  life  of  the  infant.  Strong  v.  Foote,  42  Conn.  203. 

b.     Contracts  and  Conveyances  of  an  Infant. 
1.    IX   GENERAL. 

61.  What -is  the  general  rule  as  to  contracts  of  an  infant? 
The  contracts  of  an  infant  are  not  void  but  voidable,  and  if ^upon 

the  arrival  of  an  infant  at  an  age  when  he  has  a  legal  capacity  to 


206  QUESTIONS  AND  ANSWERS. 

contract,  he  confirms  the  contracts  made  in  infancy,  they  are  in 
all  respects  equal  in  binding  force  with  contracts  of  adults.  Whit- 
ney v.  Dutch,  14  Mass.  45?;  2  Kent,  Comm.  234.  This  rule  is 
based  upon  the  principle  of  protection  from  fraud  and  imposition 
of  the  infant,  and  the  other  party  to  the  contract  remains  bound 
and  cannot  use  the  plea  of  infancy  to  avoid  his  obligation.  John- 
son v.  Bockwell,  12  Ind.  76. 

62.  An  infant  signs  and  delivers  a  mortgage  deed  and  promis- 
sory note  for  $1,000,     Subsequently  after  arriving  at  his  majority 
he  becomes  insolvent.     His  assignee  files  a  pill  in  equity  to  relieve 
the  real  estate  of  the  Hen.     Is  the  assignee  entitled  to  relief? 

No,  the  right  of  disaffirmance  is  a  personal  one  to  the  infant 
and  not  for  the  benefit  of  his  creditors  or  the  assignee  who  repre- 
sents them.  Mansfield  v.  Gordon,  144  Mass.  168.  The  right  of 
disaffirmance,  however,  extends  to  privies  in  blood  as  distinguished 
from  privies  in  estate,  and  the  heirs  may  interpose  the  plea  of  in- 
fancy. Harvey  v.  Briggs,  68  Miss.  60. 

63.  An  infant  receives  property  under  a  contract  of  sale  and  dur- 
ing his  minority  returns  the  property  to  the  original  owner.     Can 
he  subsequently  retake  the  properly? 

No,  the  right  of  disaffirmance  exists  during  the  infancy  as  well 
as  after  the  arrival  at  majority.  Edgerton  v.  Wolf,  6  Gray  (Mass.) 
453.  This  right  is  confined  to  rights  affecting  personalty,  and  con- 
veyances of  land  cannot  be  avoided  during  minority.  Emmons  v. 
Murray,  16  K  H.  385;  Zouch  v.  Parsons,  3  Burrows,  1794. 

2.    AFFIRMANCE  AND  DISAFFIRMANCE. 

64.  What  are  the  infant's  rights  and  liabilities  upon  reaching 
his  majority  in  respect  to  contracts  made  while  he  was  an  infant? 

He  may  either  confirm  or  disaffirm  such  contracts;  affirmance 
may  be  by  any  unequivocal  act  which  establishes  a  clear  intention 
to  confirm  the  transaction.  Ratification  may  be  also  inferred  from 
circumstances,  as  when  chattels  are  retained  for  a  reasonable  time 
after  the  infant's  arriving  at  majority.  Boyclen  v.  Boyden,  9  Mete. 
(Mass.)  519.  But  if  the  infant  has  parted  with  the  property,  ratifi- 
cation will  not  be  presumed  from  mere  inaction.  American  Free- 
hold Land  Mortgage  Co.  v.  Dyker,  111  Ala.  178.  In  conveyances 
of  real  estate  the  courts  are  divided  as  to  whether  mere  acquiescence 
will  effect  a  ratification.  22  Am.  &  Eng.  Ency.  of  Law,  542. 

65.  An  infant  purchases  certain  chattels  and  gives  a  mortgage 
upon  them.     The  chattels  are  subsequently  sold  to  a  third  party. 
Is  the  mortgage  good? 

Yes,  if  an  infant  would  rescind  part  of  the  contract,  he  must 
rescind  the  whole  and  restore  title  to  the  vendor.  If  ho  soils  the 
property,  the  purchaser  takes  subject  to  the  mortage.  Curtis  v. 


DOMESTIC  RELATIONS.  207 

MacDougal,  26  Ohio  St.  66.  The  same  rule  applies  to  a  sale  and 
mortgage  back  of  real  estate,  the  whole  transaction  being  con- 
sidered as  one  contract.  Hubbard  v.  Cummings,  1  Me.  11. 

66.  When  must  an  infant  return  the  consideration? 
•  Upon  the  rescission  of  a  contract  upon  reaching  majority,  the 
specific  property,  if  still  in  the  possession  of  the  infant,  must  be 
returned  before  suit  can  be  maintained  for  the  consideration. 
Robinson  v.  Weeks,  56  Me.  102;  Price  v.  Furman,  27  Vt.  268. 
Contra  to  this  it  has  been  held  that  upon  the  avoidance  of  the 
contract,  the  parties  stand  in  the  position  as  though  no  contract 
had  been  made  and  entered  into.  Tender  of  the  property  is  not 
necessary  on  the  part  of  the  infant,  although  the  vendor  becomes 
at  once  entitled  to  retake  his  property.  Carpenter  V.  Carpenter, 
45  Ind.  142.  If  the  infant  has  parted  with  the  property  or  con- 
sideration, the  law  is  settled  that  his  right  to  recover  is  not  thereby 
lost.  Chandler  v.  Simmons,  97  Mass.  508,  514.  The  right  of  an 
infant  to  disaffirm  his  contract  is  based  upon  the  theory  of  his  own 
improvidence,  and  if  the  infant  is  compelled  to  restore  the  con- 
sideration the  privilege  of  repudiation  would  be  of  least  avail 
when  most  needed.  Craig  v.  Van  Bebber,  100  Mo.  584.  The 
courts  distinguish  in  this  instance  between  executed  and  executory 
contracts  holding  in  the  former  case  that  when  a  claimant  seeks 
for  affirmative  relief,  he  must  restore  the  consideration  or  its 
equal.  'Bartholomew  v.  Finnemore,  17  Barb.  428;  Eureka  Co.  v. 
Edwards,  71  Ala.  248,  256. 


KQUIX  Y. 


I.    IN  GENERAL.* 

1.  State  briefly  the  origin  of  courts  of  equity. 

Owing  to  the  many  technicalities  and  limited  development  of 
the  ancient  common  law,  persons  whose  rights  were  injuriously 
affected  frequently  failed  to  obtain  adequate  relief.  la  such 
cases  those  injured  would  not  unnaturally  appeal  to  the  king,  as 
being  the  highest  power  in  the  State,  and  demand  of  him  sub- 
stantial justice. 

In  course  of  time  so  numerous  became  these  applications  that 
the  king  was  obliged  to  delegate  his  authority  to  his  most  trusted 
adviser,  who  was  called  the  lord  chancellor. 

A  court  was  at  length  established,  presided  over  by  the  above- 
named  functionary,  and  a  system*  of  jurisprudence  developed, 
wonderful  alike  for  its  symmetry  and  simplicity.  Bispham's  Prin. 
of  Equity,  chap.  1;  1  Story,  Eq.  Jur.,  chap.  2. 

2.  In  what  cases  has  equity  exclusive  jurisdiction  ? 

Equity  has  exclusive  jurisdiction  in  all  cases  where  the  right 
asserted  is  not  recognized  by  courts  of  law.  The  law  of  trusts 
forms  an  important  illustration.  2  Story,  Eq.  Jur.,  §  960;  3  Bl. 
Comm.  430-432. 

3.  Over  what  matters  has  equity  concurrent  jurisdiction  with 
courts  of  law? 

The  jurisdiction  of  equity  is  concurrent  when  courts  of  both 
law  and  equity  recognize  the  right,  but  the  relief  afforded  by  the 
latter  is  more  complete. 

The  most  important  cases  under  this  division  are  accident,  mis- 
take, and  fraud.  3  Wait,  Acts.  &  Defs.  161;  1  Story,  Eq.  Jur. 
(13th  ed.),  §§  75-440. 

4.  When  has  equity  auxiliary  jurisdiction  ? 

Equity  is  said  to  have  auxiliary  jurisdiction  when  it  aids  the 
common-law  courts  in  the  administration  of  justice  without  as- 
suming jurisdiction  over  the  subject-matter.  Bills  to  perpetuate 
testimony  beloner  to  this  division  of  eauitable  jurisdiction.  2 
Story,  Eq.  Jur.,  §§  1480-1481;  3  Wait,  Acts.  &  Defs.  181. 

*  The  student  is  referred  to  chapter  2  of  Bisnham's  Principles  of  Equity  for  a  clear  and 
convenient  summary  of  Equitable  Jurisdiction. 

208 


-EQUITY.  209 

5.  What  is  equitable  conversion? 

"  On  the  principle  that  equity  considers  that  as  done  which 
ought  to  have  been  done,  it  is  well  established,  that '  money  directed 
to  be  employed  in  the  purchase  of  land,  and  land  directed  to  be 
.sold  and  turned  into  money,  are  to  be  considered  as  that  species 
of  property  into  which  they  are  directed  to  be  converted/  "  2 
Jarman  on  Wills,  170;  Fletcher  v.  Ashburner,  1  Br.  C.  C.  497; 
s.  c.,  1  Sm.  &  Tudor,  Cas.  in  Eq.  1118.  On  the  question,  whether 
th ;  interpretation  of  a  will  by  the  courts  of  one  State  will  hold  as 
to  real  estate  in  another  jurisdiction,  so  as  to  work  a  conversion  of 
it,  and  a  consequent  disposal  of  it  as  personalty,  see  Washburn  v. 
Steenwyk,  32  Minn.  336;  Ford  v.  Ford,  80  Mich.  42;  Page's  Estate, 
75  Penn.  St.  87. 

6.  What  is  meant  by  the  "  doctrine  of  contribution  "  ? 

The  equitable  doctrine  of  contribution  is  said  to  arise  when 
one  of  several  parties  who  are  liable  for  a  joint  debt  or  obli- 
gation discharges  the  same  for  the  benefit  of  all.  In  such  a  case 
he  has  a  right  to  call  upon  his  co-debtors  to  reimburse  him  to  the 
extent  of  their  own  liability.  Bispham's  Prin.  of  Equity,  §§  27, 
328ff;  1  Story,  Eq.  Jur.,  §§"492-499. 

7.  What  is  the  doctrine  of  marshalling  securities? 

It  is  such  an  arrangement  of  the  different  funds  under  ad- 
ministration as  shall  enable  all  the  parties  having  equities  thereon 
to  receive  their  due  proportions,  notwithstanding  any  intervening 
interests,  liens,  or  other  claims  of  particular  persons  to  prior  satis- 
faction, out  of  a  portion  of  these  funds.  1  Story,  Eq.  Jur.,  §  558; 
Bispham's  Prin.  of  Equity,  §  340ff;  Willard's  Equity  (Potter's  ed.), 
337. 

8.  What  is  the  doctrine  of  subrogation? 

It  is  the  right  which  a  surety  who  pays  the  debt  of  his  principal 
has  to  be  substituted,  in  the  place  of  his  creditor,  as  to  all  the  se- 
curities, or  means  in  the  hands  of  the  latter,  which  may  be  useful 
to  enforce  payment  of  the  primary  obligor.  Bispham's  Prin.  of 
Equity,  §§  335-339;  Dering  v.  Winchelsea,  1  Lead.  Cas.  Eq.  137, 
and  note. 

9.  What  is  a  bill  of  discovery? 

At  common  law  there  was  no  means  by  which  a  party  to  an 
action  could  compel  fh.e  adverse  party  to  testify  as  to  the  mat- 
ters in  dispute,  or  by  which  the  production  of  documents  in  his 
possession  could  be  enforced.  This  difficulty  gave  rise  to  a  nil* 
of  equity  to  the  effect  that  courts  of  chancery  would  compel^  a 
discovery  of  the  matters  desired  to  be  ascertained;  in  other  words, 
'  14 


210  QUESTIONS  AND  ANSWERS. 

the  defendant  in  a  bill  in  equity  was  obliged  to  answer  under 
oath  the  allegations  contained  in  the  bill.  The  production  of  doc- 
uments could  also  be  enforced,  and  an  opportunity  for  their  in- 
spection afforded.  "  Bills  of  discovery,  therefore,  in  their  techni- 
cal sense,  are  bills  which  are  filed  for  the  purpose  of  assisting  one 
of  the  parties  to  a  common-law  action;  and  which,  seeking  no  in- 
dependent relief  themselves,  aim  solely  at  arming  the  complainant 
with  the  necessary  and  proper  means  for  asserting  or  defending 
his  right  or  title  at  law."  See  Bispham's.  Prin.  of  Equity,  chap. 
VIII;  2  Story,  Eq.  Jur.,  §§  689-691. 

10.  What  is  the  object  of  a  bill  of  interpleader,  and  under 
what  circumstances  is  its  use  proper? 

Interpleader  is  the  remedy  given  to  a  person  who  is  practically 
in  the  position  of  a  stakeholder.  Two  or  more  persons  severally 
make  claim  against  him  for  the  same  thing,  under  different  titles 
or  in  separate  interests.  In  this  situation,  not  knowing  to  which 
of  the  claimants  he  is  under  obligation,  and  being  either  actually 
molested  by  one  or  mor.e  $uits,  or  in  fear  of  loss  from  the  con- 
flicting claims  of  the  parties,  he  applies  to  the  court  to  compel  the 
claimants  to  work  out  their  controversy,  without  further  annoyance 
to  him.  He,  of  course,  stands  ready  to  abide  by  and  follow  what- 
ever settlement  the  court  may  make  of  the  rival  claims.  Bisp- 
ham's  Prin.  of  Equity,  §§  419-421. 

11.  State  generally  the  powers,  duties,  and  obligations  of  a 
receiver  in  equity. 

A  receiver  is  an  indifferent  person  between  the  parties  appointed 
by  the  court  to  collect  and  receive  the  rents,  issues,  and  profits  of 
land,  or  the  produce  of  personal  estate,  or  other  things  which  it 
does  not  seem  reasonable  to  the  court  that  either  party  should  do. 

His  general  duty  may  be  said  to  be  to  take  possession  of  the 
estate  in  the  room  and  place  of  the  owner  thereof,  and,  under 
the  supervision  of  the  court,  to  manage  the  property  so  as  to  pre- 
serve the  same,  and  (if  possible)  to  make  it  profitable  for  those 
who  may  ultimately  be  declared  the  owners  thereof.  The  powers 
of  a  receiver  are  limited.  All  his  actions  are  under  the  immediate 
control  of  the  courtj  and  in  order  to  a  safe  custody  of  the  estate,  he 
must  constantly  apply  to  the  court  for  its  advice  and  sanction. 
Bispham's  Prin.  of  Equity,  §§  576-580;  Kerr  on  Receivers,  chap. 
VII. 

12.  In  what  cases  and  for  what  purposes  may  a  court  of 
equity  appoint  a  receiver? 

The  cases  in  which  a  receiver  may  be  appointed  are  numerous. 
Thus,  the  appointment  may  be  made  (1)  either  because  of  the 
incapacity  of  the  holder  of  the  legal  title;  or  (2)  because  of  the 


•  EQUITY.  211 

untrustworthiness  of  such  holder;  or  (3)  because  of  disputes  be- 
tween the  legal  owners;  or  (4)  because  equitable  rights  might  be 
endangered  by  leaving  the  property  in  the  hands  of  the  holder  of 
the  legal  title;  or  (5)  because  the  rights  of  remaindermen  or  re- 
versioners  might  be  endangered.  Bispham's  Prin.  of  Equity,  §  578. 

'13.  What  is  a  cloud  upon  title,  and  what  an  appropriate 
equitable  remedies? 

A  cloud  upon  title  is  a  title,  or  incumbrance,  apparently  valid, 
but  in  fact  invalid.  The  appropriate  remedy  is  a  bill  in  equity 
praying  the  court  to  declare  such  title  or  incumbrance  of  no 
effect.  1  Wait,  Acts.  &  Defs.  662;  Bispham's  Prin.  of  Equity, 
§575. 

14.  State  and  explain  the  principal  maxims  of  equity. 

1.  "  Equity  will  not  suffer  a  right  to  be  without  a  remedy." 
This  principle  is  the  very  foundation  of  equity  jurisdiction,  for  the 
system  had  its  origin  in  the  inability  of  the  law  courts  to  meet 
the  requirements  of  justice.     Under  this  maxim,  also,  courts  of 
equity,  when  they  once  assume  jurisdiction,  will  administer  as 
nearly  complete  a  remedy  as  possible,  though  some  of  the  questions 
so  decided  would  not  by  themselves  receive  attention  from  those 
courts.     Bispham's  Prin.  of  Equity,  §  37. 

2.  "  He  who  comes  into  equity  must  do  so  with  clean  hands." 
This  maxim  signifies  that  the  person  seeking  relief  must  not 

have  been  guilty  of  participating  in  the  wrong  from  the  conse- 
quences of  which  he  asks  relief.  Thus,  when  one  of  several  who 
have  been  engaged  in  a  fraudulent  transaction  has  acquired  the 
result  of  the  fraud,  equity  "  will  not  aid  the  others  in  obtaining 
their  share  of  the  spoils."  See  Bispham,  supra,  §  61;  Wheeler  v. 
Sage,  1  Wall.  518. 

3.  "  He  who   seeks  equity  must   do   equity."     An   illustration 
given  by  Mr.  Bispham  is  that  of  a  borrower  at  a,  usurious  rate  of 
interest,  who  comes  in  to  ask  relief  from  his  contract.     To  gain 
standing  in  the  court,  he  must  return  to  the  lender  the  amount 
borrowed,  with  interest  at  lawful  rates.     Bispham,  supra,  §  43,  and 
cases  cited. 

4.  "  Between  equal  equities,  priority  of  time  will  prevail." 

If  A.  owning  land,  contracts  to  sell  it  to  B.,  and  later  makes 
the  same  contract  with  C.,  B.'s  equity  will  prevail  over  C.'s,  since 
it  is  prior  in  time,  and  both  the  equities  run  against  the  same 
person.  Id.,  §  45.  But  compare  Buckingham  v.  Hanna,  2  Ohio 
St.  555. 

5.  "  Equity  follows  the  law."     See  Question  29,  in  section  on 
Trusts. 

6.  "  Equity  will  not  assist  those  who  sleep  on  their  rights."     See 
Trusts,  Question  40;  Bispham's  Prin.  of  Equity,  §  39. 


212  QUESTIONS  AXD  ANSWERS. 

7.  "Equity  acts  in  pcrsonam."  See  Trusts,  Questions  37,  38; 
Bispham's  Prin.  of  Equity,  §  47;  Penn  v.  Lord  Baltimore,  1  Ves. 
444;  s.  c.,  2  Lead.  Cas.  Eq.  767. 

II.  ACCIDENT,  MISTAKE,  FRAUD. 

15.  What  is  meant  by  the  term  "  accident  "  as  used  in  equity 
jurisprudence?     And  when  will  equity  relieve  against  its  conse- 
quences? 

Accident  is  an  unforeseen  and  injurious  occurrence  not  attrib- 
utable to  mistake,  neglect,  or  misconduct.  Smith's  Manual  of 
Equity,  36;  1  Story,  Eq.  Jur.,  §  78;  Bispham's  Prin.  of  Equity, 
§  174. 

The  principal  cases  of  accident  for  which  equity  will  afford  relief, 
are  (1)  loss  or  destruction  of  a  deed  or  other  instrument,  where  the 
loss  of  the  instrument  deprives  the  party  of  some  remedy  at  law, 
and  he  furnishes  a  bond  of  indemnity  to  protect  other  parties  from 
possible  harm  arising  from  a  subsequent  discover}7  of  the  docu- 
ment (1  Story,  Eq.  Jur.,  §§  83-89;  Bispham's  Prin.  of  Equity, 
£§  176,  177);  (2)  erroneous  payments  of  money;  1  Story,  Eq.  Jur., 
§§  90-93;  (3)  penalties  and  forfeitures. 

AVhen  the  parties  fix  a  sum  certain  as  the  amount  to  be  paid  in 
the  event  of  a  violation  of  an  agreement,  that  sum  is  liquidated 
damages,  if  it  is  considered  by  the  courts  to  be  an  approximation  of 
the  actual  damage;  otherwise  it  is  a  penalty.  Such  agreed  sum  will 
be  regarded  as  a  penalty  (and  relief  will  be  given),  (1)  if  the 
intention  of  the  parties  on  the  face  of  the  instrument  is  doubtful; 
(2)  even.if  clear  language  is  used,  if  the  agreement  is  for  a  larger 
sum  to  be  paid  for  failure  to  pay  a  smaller,  or  where  there  are  sev- 
eral things  to  be  done  or  omitted,  and  the  damage  is  easily  as- 
certainable  by  a  jury. 

In  other  cases,  it  will  not  be  regarded  as  a  penalty,  provided  the 
intention  is  clear  for  stipulated  damages,  however  extravagant  it 
may  seem.  Sandford,  J.,  in  Bagley  v.  Peddie,  5  Sandf.  640;  3  Par- 
sons on  Contracts,  156-163.  And  see  Damages,  Ques.  8. 

16.  What  is  such  mistake  that  equity  will  give  relief,  and 
what  is  the  relief  obtainable? 

A  mistake  must  have  been  mutual,  material,  free  from  negli- 
gence and  as  to  an  existing  fact.  1  Beach,  Eq.  Jur.,  par.  49;  1 
Story,  Eq.  Jur.,  §§  140-144. 

If  the  subject-matter  is  knozt.ii  to  be  uncertain,  or  if  in  any  sense 
the  transaction  is  understood  to  be  speculative,  no  relief  will  be 
granted.  McCobb  v.  Richardson,  24  Me.  82;  Crowder  v.  Langdon, 
3  Ired.  Eq.  476. 

As  to  mistakes  of  law,  the  old  rule  was  long  unquestioned,  that 
no  relief  would  be  given  (Hunt  v.  Rousmaniere.  1  Pet.  14);  but  of 
late,  courts  have  frequently  seized  opportunities  to  restrict  the 


EQUITY.  213 

effect  of  that  doctrine.     Bispham's  Prin.  of  Equity,  §  188;  Park 
Bros.  &  Co.  v.  The  Blodgett  &  Clapp   Co.,  64  Conn.  28. 

The  remedy  is  by  reformation  (Park  Bros.  &  Co.  v.  The  Blod- 
gett &  Clapp  Co.,  supra);  cancellation  (Thwlng  v.  Hall,  40  Minn, 
184);  or  rescission.  Erwin  v.  Wilson.,  45  Ohio  St.  426. 

17.  What  is  fraud?  What  is  the  jurisdiction  of  equity  over 
it?  What  is  the  effect  of  fraud  on  a  transaction  or  contract? 

There  is  no  comprehensive  definition  of  fraud.  Courts  always 
avoid  setting  a  limit  beyond  which  they  will  not  go,  "  lest,"  in  Lord 
Hardwicke's  words,  "  other  means  for  avoiding  the  equity  of  the 
court  should  be  found  out."  Lawley  v.  Hooper,  3  Atk.  278.*  The 
classification  made  by  that  distinguished  judge  in  Chesterfield  v. 
Janssen,  1  Atk.  301,  is  still  the  accepted  form,  and  is  as  follows: 

(1)  Fraud  arising  from  facts  and  circumstances  of  imposition; 

(2)  fraud  arising  from  the  intrinsic  matter  of  the  bargain  itself; 

(3)  fraud  presumed  from  the  circumstances  and  condition  of  the 
parties  contracting;  and  (4)  fraud  affecting  third  persons  not  par- 
ties to  the  agreement.     This  classification  is  explained  in  1  Beach, 
Mod.  Eq.  Jur.,  §  64;  and  Bispham's  Prin.  of  Equity,  §§  205,  ff. 

The  jurisdiction  of  courts  of  chancery  extends  to  every  case  of 
fraud  except  one,  being  concurrent  often  with  the  jurisdiction  of 
the  law  courts,  although,  as  a  matter  of  practice,  not  exercised  in 
those  classes  of  cases  where  the  law  furnishes  an  adequate  and 
more  convenient  remedy.  1  Beach,  Mod.  Eq.  Jur.,  §  65;  Bispham's 
Prin.  of  Equity,  §  200.  The  one  exception,  seemingly  an  arbitrary 
one,  is  that  equity  will  not  interfere  to  set  aside  a  will,  or  the  pro- 
bate thereof,  for  fraud.  The  probate  courts  have  exclusive  juris- 
diction. 1  Beach,  supra,  §  66;  Broderick's  Will,  21  Wall.  503. 

Fraud  renders  a  transaction  or  contract  voidable  at  the  option 
of  the  person  injured,  if  he  acts  promptly  after  discovering  the 
fraud.  It  is  not  void.  A  conveyance  obtained  by  fraud,  for  example, 
passes  the  legal  title  to  the  grantee,  and  if  he  sells  and  conveys  to 
a  purchaser  for  value  without  notice,  the  position  of  the  latter  is 
unassailable.  Bispham,  supra,  §§  202,  263.  And  see  Trusts,  Ques- 
tions 22,  ff. 

.  18.  What  choice  of  remedies  has  a  person  injured  by  fraud? 

The  remedies  open  to  him  may  all  be  included  under  three 
methods  of  procedure. 

Mr.  Beach  states  them  as  follows  (1  Beach,  Mod.  Eq.  Jur.r 
§  67):  "  He  may  first  rescind  the  contract  absolutely  and  sue  in 
an  action  at  law  to  recover  the  consideration  parted  with  upon  the 
fraudulent  contract.  To  maintain  such  action  he  must  first  restore, 
or  offer  to  restore,  to  the  other  party,  whatever  may  have  been 

*  The  essentials  of  actionable  fraud  will  be  found  in  the  section  on  Torts. 


214  QUESTIONS  AND  ANSWERS. 

received  by  him  by  virtue  of  the  contract."  Cobb  v.  Hatfield  46 
N.  Y.  533. 

"  Secondly,  he  may  retain  what  he  has  received  and  bring  an 
action  at  law  to  recover  the  damages  sustained.  This  action  pro- 
ceeds upon  an  affirmance  of  the,  contract,  and  the  measure  of  the 
plaintiff's  recovery  is  the  difference  between  what  he  has  received 
and  what  he  should  have  received  according  to  the  representations." 
Krumm  v.  Beach,  96  N.  Y.  398,  406. 

"  Lastly,  he  may  bring  a  suit  in  equity,  and  in  that  suit  have  full 
relief.  Such  a  suit  is  not  founded  upon  a  rescission,  but  is  main- 
tained for  a  rescission,  and  it  is  sufficient,  therefore,  for  the  plain- 
tiff to  offer  in  his  bill  or  complaint  to  return  what  he  has  received 
and  make  tender  of  it  at  the  trial  or  hearing."  Gould  v.  Cayu^a 
Nat.  Bank,  86  N.  Y.  75. 

III.  SPECIFIC  PERFORMANCE. 

19.  What  is  the  nature  and  object  of  the  equitable  remedy  of 
specific  performance,  and  under  what  conditions  will  it  be 
granted,  in  general? 

A  decree  of  specific  performance  is  to  compel  a  defendant  to 
actually  do  what  he  has  agreed  to.  Courts  of  law  cannot  issue 
such  decrees,  because  those  courts  do  not  act  in  personam,  while 
a  court  of  equity,  if  its  decree  is  disobeyed,  can  imprison  the  de- 
fendant for  contempt.  Bispham's  Prin.  of  Equity,  §  29;  Fry  on 
Specific  Performance  (3d  Am.  ed.),  §  3. 

The  most  important  condition  necessary  to  an  exercise  of  the 
power  to  grant  specific  performance  is  that  there  is  no  adequate 
remedy  at  law;  i.  e.,  that  no  action  lies  at  law  or  that  the  case  is 
such  that  a  money  payment  would  not  compensate  the  other  party 
for  a  breach  of  the  contract.  Thus,  it  is  obvious  that  a  piece  of 
land  may  have  special  and  peculiar  advantages  of  situation  and 
environment  which  no  other  land  has  and  which  no  amount  of 
money  could  reproduce.  The  same  is  only  true  to  a  limited  extent 
of  personal  property,  and  the  general  rule  is,  therefore,  that  in  con- 
tracts relating  to  realty  specific  performance  will  be  granted,  and 
in  those  involving  personalty  it  will  not.  2  Beach,  Mod.  Eq.  Jur., 
§  636;  Fry  on  Specific  Performance,  §  56. 

Contracts  relating  to  personalty  will,  however,  be  enforced  speci- 
fically if  the  chattel  has  a  peculiar  or  personal  value,  or  when 
the  damages  are  for  other  reasons  impossible  of  ascertainment.  In 
short,  there  is  no  discrimination  against  chattels,  as  such.  2  Beach, 
Mod.  Eq.  Jur.,  §  598;  Bispham's  Prin.  of  Equity,  §§  368-371;  Fry 
on  Specific  Performance,  §§  27n.,  57,  ff. 

The  contract  must  also  be  based  upon  a  valuable  consideration. 
2  Beach,  supra,  §  572;  and  the  consideration  must  not  be  grossly 
inadequate.  Id.,  §  574;  Bispham,  supra,  §  374. 

That  the  contract  must  also  be  mutual,  see  a  good  discussion  of 
the  subject  in  Palmer  v.  Gould,  144  N.  Y.  671. 


EQUITY.  215 

20.  Will  equity  decree  specific  performance  of  a  verbal  con- 
tract, which  should  have  been  in  writing  to  comply  with  the 
Statute  of  Frauds? 

As  a  general  rule,  such  a  contract  will  not  be  so  enforced;  but 
there  are  three  exceptions. 

(1)  When  the  Statute  of  Frauds  is  not  relied  upon  as  a  defense. 
It  is  settled  that  that  statute  did  not  create  a  new  requisite  for 
the  existence  of  a  contract;  or  in  other  words,  such  a  contract  is 
not  voiS   because  not  reduced  to  writing.     Browne  on  Statute  of 
Frauds  (4th  ed.),  §§  508,  510,  515. 

(2)  When  the  contract  has  been  so  far  acted  upon  that  the 
parties  cannot  be  restored  to  their  original  position.     What  is  suffi- 
cient part  performance  to  take  the  case  out  of  the  statute  is  often 
difficult  to  say.      Entering  into  possession,  with  improvements 
made,  is  enough.     Bispham's  Prin.  -of  Equity,  §  385,  and  cases 
cited.    Probably  a  notorious  taking  of  possession  in  pursuance  of 
the  contract  is  sufficient,  without  more,  (Browne  on  Statute  of 
Frauds,  §§  467,  473ff);  but  it  is  not  indispensable.     Browne,  supra, 
§  466. 

(3)  When  the  reduction  of  the  contract  to  writing  has  been 
prevented  by  fraud.     Bispham,  supra,  §  386.     And  see  2  Jones  on 
Evidence,  §  434;  1  Greenleaf  on  Evidence  (14th  ed.),  §  284,  and 
notes. 

IV.  INJUNCTIONS. 

21.  Define  an  injunction,  and  state 'the  difference  between 
a  mandatory  and  a  prohibitory  injunction. 

Mr.  Bispham's  words  are:  "An  injunction  is  a  writ  remedial 
issuing  by  order  of  a  court  of  equity,  and  commanding  a 
defendant  to  perform  some  act  or  restraining  a  defendant  from 
the  commission  or  continuance  of  some  act."  The  former  is  a 
mandatory,  and  the  latter  a  prohibitory  injunction.  Mandatory 
injunctions  are  rarely  granted,  except  on  final  decree  after  a 
hearing,  because  they  change  the  status  of  the  parties.  Bispham's 
Prin.  of  Equity,  §  30;  2  Beach,  Mod.  Eq.  Jur.,  §§  638,  639. 

22.  What  are  the  general  principles  on  which  injunctions  are 
granted? 

It  must  appear  that  the  party  has  no  adequate  remedy  at  Taw; 
that  an  irreparable  injury-  will  follow,  if  an  injunction  is  denied 
(i.  e.,  in  general,  one  which  cannot  be  compensated  by  a  money 
payment) :  that  the  danger  is  imminent;  and  that  .he  has  a  clear, 
undoubted  right.  2  Beach,  Mod.  Eq.  Jur.,  §§  640-643;  Bispham's 
Prin.  of  Equity,  §§  30,  399, ff. 


I.  IN  GENERAL. 
a.    Judicial  Notice. 

1.  What  is  judicial  notice  and  how  far  does  it  extend? 

It  is  the  recognition  by  the  court,  without  evidence  or  argument, 
of  the  existence  of  certain  facts  or  classes  of  facts. 
The  principal  facts  so  noticed  are: 

(a)  The  existence  and  titles  of  all  the  powers  in  the  civilized 
world  recognized  by  the  government  of  the  United  States,  and 
their  respective  flags  and  seals; 

(b)  The  general  usages  and  customs  of  merchants; 

(c)  The  seals  of  foreign  admiralty  courts  and  notaries  public; 

(d)  The  laws  and  general  customs  of  the  United  States  and  their 
own  particular  State; 

(e)  The  territorial  extent  of  the  jurisdiction  and  sovereignty 
exercised  by  their  own  government; 

(f)  The  local  political  divisions  and  the  general  geographical 
features  of  their  own  country  and  State; 

(g)  All  things  which  must  have  happened  according  to  the  or- 
dinary course  of  nature,  such  as  'the  limitation  of  the  length  of 
human  life.    . 

(h)  Ordinary  abbreviations  and  meaning  of  words  in  the  vernacu- 
lar language.  Stephen's  Dig.  Ev.,  art.  58.  And  see  for  a  more 
extended  list,  1  Greenleaf  on  Evidence  (14th  ed.),  §§  4-6. 

2.  In  a  murder  trial  it  became  important  to  prove  the  time 
of  moonrise  on  a  certain  night.      A  reputable  almanac  was  re- 
ceived.   Did  the  court,  by  this,  take  notice  of  the  time  the  moon 
rose? 

No.  The  fact  judicially  noticed  was  the  accuracy  of  the  publi- 
cation. Munshower  v.  State,  55  Md.  11;  Sisson  v.  R.  R.  Co.,  14 
Mich.  489.  In  the  Maryland  case  the  court  allude  to  insurance 
tables  showing  the  probable  duration  of  life,  weather  reports  and 
reports  of  the  state  of  the  market,  as  analogous  cases. 

3.  Are  the  laws  of  the  different  States  judicially  noticed  by 
the  courts  of  the  other  States,  or  by  the  Federal  courts? 

The  States  being  foreign  to  each  other,  their  laws  must  at  com- 
mon law  be  proven  as  facts  in  the  various  State  courts  (Pelton  v. 

*  Re'erene-*  to  Greenleaf  are  from  the  fourteenth  edition.     St*»r>hf>n'R  Digest  is  to  be 
found  complete,  in  vol.  7,  Am.  and  Eng.  Ency.  of  Law  (1st  ed.),  pp.  42-112 

216 


EVIDENCE.  217 

Plainer,  13  Ohio  St.  209;  Knapp  v.  Abell,  10  Allen,  485);  but  by 
statute  the  accuracy  of  the  official  State  reports  is  now  generally 
recognized. 

The  Federal  courts  take  notice  of  the  laws  of  all  the  States,  be- 
cause they  are  created  to  administer  the  State  laws,  as  well  as  those 
of  the  United  States.  Owings  v.  Hull,  9  Pet.  607,  625.  But  the 
Cupreme  Court  when  sitting  to  review  the  decision  of  a  State 
Supreme  Court  is  limited  as  to  its  judicial  knowledge  of  State 
laws  by  that  of  the  court  from  which  the  case  came.  Hanley  v. 
Donoghue,  116  U.  S.  1. 

b.     Burden  of  Proof. 
4.   What  is  the  burden  of  proof?     Does  it  ever  shift? 

The  phrase  "  burden  of  proof  "  is  used  in  two  senses:  (1)  As  the 
duty  of  bringing  forward  evidence  in  support  of  a  given  proposi- 
tion; (2)  As  the  duty-  of  establishing  a  proposition  as  against  all 
counter-argument  or  evidence. 

Whichever  party  has  an  affinnatii-e  case  has  the  burden  of  proof 
in  the  second  sense,  i.  e.,  the  duty  of  ultimately  establishing  his 
case,  by  the  balance  of  probabilities  in  a  civil  action,  and  against 
a  reasonable  doubt  in  a  criminal  prosecution.  •  The  question  of 
which"  side  has  the  affirmative  case,  which  would  be  settled  entirely 
by  the  pleadings  if  these  were  scientific,  is  determined  partly  by 
them,  partly  by  convenience,  by  presumptions  which  have  hardened 
into  rules  of  law,  and  so  on. 

Clearly,  in  that  sense,  the  burden  of  proof  never  shifts.  After  it 
is  once  fixed  by  these  considerations,  it  remains  with  the  party 
on  whom  it  falls.  In  the  first  sense  (the  duty  of  going  forward), 
the  burden  does  shift.  One  side  makes  out  at  a  certain  stage  of  the 
proceedings  a  prima  facie  case.  The  opposing  party  must  bring 
up  evidence  to  offset  this  advantage,  but  it  is  evident  that  the  duty 
of  so  doing  may  be  sometimes  with  the  one  who  must  ultimately 
establish  the  affirmative  case,  and  at  other  times  with  his  adversary. 
The  use  of  the  one  term  for  these  two  duties  results  in  endless 
contusion. 

See  on  the  -whole  subject  an  extended  discussion  by  Prof.  James  B. 
Thayer.  in  4  Harvard  Law  Rev.  48;  and  also  Baxter  v.  Camp,  71  Conn. 
245. 

In  England,  it  seems  that  the  term  "  burden  of  proof  "  means  the 
duty  of  going  forward  with  evidence.  Abrath  v.  R.  R.  Co.,  11  Q.  B.  Div. 
440."  In  Massachusetts,  it  means  the  duty  of  establishing  the  case. 
Powers  v.  Russell.  13  Pick.  69.  But  in  most  courts  it  is  used  indiscrim- 
inately in  either  sense. 

Tne  point  may  be  illustrated  by  the  case  of  a  will,  where  the  capacity 
of  the  testator  is  questioned.  The  duty  of  ultimately  establishing  the 
mental  state  necessary  to  mane  a  valid  will  is  admittedly  with  the 


218  QUESTIONS  AND  ANSWERS. 

executor.  Barry  v.  Butlin,  2  Moo.  P.  C.  480;  Crowninshield  v.  Crown- 
inshield,  2  Gray,  524.  That  Is,  if  at  the  end  of  the  case  there  is  a  bal- 
ance of  probabilities  against  him,  the  executor  loses.  But  the  usual 
presumption  of  mental  soundness  holds,  and  the  parties  attacking  the 
will  must  go  forward  with  evidence  of  insanity  before  the  executor 
need  move  at  all. 

c.     Presumptions. 

5.  Explain  the  terms  "  presumption  of  law  "  and  "presump- 
tion of  fact," 

These  terms  are  expressive  of  two  periods  in  the  growth  of 
the  rules  called  presumptions.  The  origin  of  any  rule  of  the 
kind  lies  in  an  observed  connection  between  two  facts.  When  this 
connection  becomes  fairly  uniform,  i.  e.,  when  it  is  perceived  that 
if  the  fact  X.  is  present,  and  the  ordinary  condition  of  things  pre- 
vails, the  fact  Y.  follows,  a  presumption  arises  that  X.  being  shown 
to  exist,  Y.  also  exists.  This  is  a  presumption  of  fact,  or,  in  other 
words,  a  prima  facie  rule  of  law.  1  Greenleaf  on  Evidence,  66,  and 
note.  It  has  the  effect  of  evidence,  in  that  when  the  fact  X. 
appears,  the  opposing  side  has  the  burden  of  going  forward  to  show 
that  the  usual  condition  of  things  is  so  altered  tha?t  the  fact  Y. 
does  not  necessarily  follow.*  . 

Most  presumptions  cease  their  development  at  this  point,  but 
some,  like  that  of  a  lost  grant  after  twenty  years'  adverse  user  of  an 
incorporeal  hereditament,  have  hardened  into  positive  rules  of 
law,  not  rebuttable.  Tracy  v.  Atherton,  36  VI  503.  This  is 
what  is  meant  by  a  presumption  of  law,  or  conclusive  presumption, 
though  the  terms,  as  pointed  out  by  Austin  (1  Austin's  Jurispru- 
dence, 491),  are  mutually  contradictory.  On  the  whole  subject,  see 
1  Greenleaf  on  Evidence,  24,  ff ;  3  Harv.  Law  Rev.  148ff. 

6.  What  is  the  meaning  and  effect  of  the  presumption  of  death 
'after  seven  years'  absence  ? 

This  presumption  means  that  after  an  absence  for  seven  years, 
during  which  the  person  in  question  has  not  been  heard  of,  the 
effect  of  the  rule  that  a  thing  once  shown  to  exist  is  presumed  to 
continue,  is  exhausted,  and  that,  therefore,  unless  positive  evi- 
dence is  brought  that  the  person  is  alive,  the  absence  unheard-from 
is  sufficient  proof  of  death.  1  Greenleaf  on  Evidence,  57. 

This  "  presumption  of  death,"  however,  does  not  settle  or  even  indi- 
cate the  time  of  the  death.  Both  the  beginning  and  end  of  the  period 
are  obviously  out  of  the  question  as  probable  dates  for  the  decease,  and 
the  result  is  that  the  party  who  needs  to  establish  the  exact  day  when 

*That  a  presumption  has  the  further  effect  of  actually  carrying  weight  as  evidence 
see  Coffin  v.  U.  S.,  156  U.  S.  432,  where  the  presumption  of  innocence  was  involved. 
But  see  contra,  State  v.  Smith,  65  Conn.  283. 

The  rule  in  civil  actions  in  Connecticut  was  in  accordance  with  the  United  States 
Supreme  Court  doctrine.  Barber's  Appeal,  63  Conn.  393,  but  this  was  overruled  in  Vin- 
cent v.  Mutual,  etc.,  Co.,  77'  Conn.  288.  the  court  acknowledging  that  Prof.  Thayer's 
argument  in  his  Treatise  on  Evidence,  pp.  313,  539,  551,  that  a  presumption  has  no 
•weight  as  evidence,  was  unanswerable. 


EVIDENCE.  219 

« 

death  occurred,  must  do  so  by  other  circumstances,  as  he  best  can. 
Nepean  v.  Knight,  2  M.  &  W.  894;  State  v.  Plym,  43  Minn.  385.  See 
Newell  v.  Nichols,  75  N.  Y.  78,  for  an  interesting  discussion  of  the  well- 
settled  doctrine,  that  when  two  persons  perish  in  the  same  disaster, 
their  relative  age  and  strength  affofd  no  presumption  as  to  which  one 
survived  the  other. 

d.     Admissions  and  Confessions. 

7.  What  is  the  difference  between  admissions  and  confessions, 
and  why  are  they  admitted  as  evidence? 

The  only  difference  is  that  the  former  term  is  usually  applied  to 
civil  transactions,  and  the  latter  to  acknowledgments  of  crime. 
They  at  first  sight  seem  a  plain  exception  ,to  the  rule  against  hear- 
say, but  Greenleaf  points  out  that  they  are  "  more  properly  admis- 
sible as  a  substitute  for  the  ordinary  proof,  either  in  virtue  of  the 
direct  consent  of  the  party,  as  in  the  case  of  explicit  admissions, 
or  on  grounds  of  public  policy  and  convenience,  as  in  the  case  of 
those  implied  from  assumed  character  or  acquiescence."  1  Green- 
leaf  on  Evidence,  229;  I  Jones  on  Evidence,  §  236. 

As  a  rule,  admissions  are  not  conclusive;  for  the  party  making  them 
may  deny  their  truth,  but  in  two  cases  they  are  conclusive  in  their 
effect.  This  is  on  the  principle  of  estoppel,  and  in  that  stage  their  truth 
or  falsity  has  nothing  to  do  with  the  case.  The  two  cases  are,  (a)  sol- 
emn admissions  made  in  the  course  of  judicial  proceedings,  either  by 
the  pleadings,  or  expressly,  as  by  an  agreement  of  counsel;  (b)  admis- 
sions extra  indicium,  which  have  been  acted  upon  or  by  which  the  party 
has  acquired  some  advantage  for  himself.  1  Greenleaf  on  Evidence,  38. 

8.  A.'s  agent,  in  the  course  of  the  business  in  which  he  was  em- 
ployed as  agent,  made  declarations  to  B.  on  the  subject  of  the 
business.      Can  B.  state  those  remarJcs  wlien  called  as  witness  in 
a  suit  against  A.,  and  if  so,  on  what  ground? 

Yes.  On  the  ground  that  the  agent  is  identified  with  the  prin- 
cipal, while  acting  within  the  scope  of  his  authority.  U.  S.  v. 
Oooding,  12  Wheat.  460. 

The  admissions  of  conspirators,  also,  are  admissible  against  each 
other,  their  interest  being  joint.  Queen  v.  Manning,  12  Q.  B.  D. 
241;  1  Greenleaf  on  Evidence,  149.  A  mere  interest  in  common  is 
insufficient.  Dan  v.  Brown,  4  Cow.  483,  492. 

9.  Are  the  admissions  of  the  transferor  of  an  overdue  note 
made  while  he  was  the  owner  of  it  admissible  to  prejudice  his 
transferee? 

There  is  a  conflict  on  this  question.  On  the  ground  that  the 
transfer  of  an  overdue!  note  is  a  mere  assignment  of  a  chose  in  ac- 


220  QUESTIONS  AND  ANSWERS. 

tion,  much  is  to  be  said  for  the  admission  of  the  transferor's  decla- 
rations. Bond  v.  Fitzpatrick,  4  Gray,  89.  But  they  have  in  some 
courts  been  ruled  out,  the  purchaser's  interests  being  considered 
by  no  means  identical  with  those  qf  his  predecessor  in  title.  Paige 
v.  Cagwin;  7  Hill,  361;  Shober  v.  Jack,  3  Mont.  351. 

10.  What  is  meant  by  "  voluntary,"  when  it  is  said  that  con- 
fessions cannot  be  used  against  a  prisoner  unless  voluntarily 
made? 

The  word  is  highly  technical.  Stephen  says,  Digest,  art.  22:  "No- 
confession  is  deemed  to  be  voluntary,  if  it  appears  to  the  judge  to 
have  been  caused  by  any  inducement,  threat  or  promise,  proceeding 
from  a  person  in  authority,  and  having  reference  to  the  charge 
against  the  accused,  whether  addressed  to  him  directly  or  brought 
to  his  knowledge  indirectly,  and  provided  that  (in  the  judge's 
opinion)  such  threat  or  promise  gave  the  accused  reasonable 
grounds  to  suppose  that  by  making  the  confession  he  would  gain 
some  advantage  or  avoid  some  evil  in  reference  to  the  proceedings 
against  him."  Reg.  v.  Baldry,  2  Denison,  C.  G.  R.  430;  State  v. 
Phelps,  11  Vt.  116, 121. 

A  well-settled  exception  to  this  rule  should  be  noticed,  to  the  effect 
that  where  a  witness  makes  a  confession  on  an  offer  of  safety  from  the 
State,  if  he  becomes  the  State's  witness,  and  afterwards  refuses  to  tes- 
tify fully  against  his  accomplices,  the  government  is  absolved  from  its 
pledge,  and  the  confession  so  gained  may  be  used  against  the  prisoner. 
Such  a  confession  is  thought  to  be  probably  true,  because  the  prisoner, 
being  free  from  any  danger  of  prosecution,  Avould  have  no  motive  for 
lying  about  himself.  Commonwealth  v.  Knapp,  10  Pick.  477. 

e.     Law  and  Fact. 

11.  7s  it  true  that  questions  of  fact  are  exclusively  for  the 
jury,  and  questions  of  law  for  the  court? 

No.  The  rule,  when  thus  set  forth,  is  misleading,  partly  be- 
cause it  is  directly  untrue,  and  partly  because  it  is  inaccurately 
stated. 

It  is  untrue,  in  that  frequently  questions  which  are  admittedly 
questions  of  fact  are  decided  by  the  court.  These  are  illustrated 
by  the  settlement  of  disputed  points  relative  to  the  admissibility 
of  evidence;  such  as  whether  a  confession  is  "  voluntary  "  (Com- 
monwealth v.  Culver,  126  Mass.  466);  or  whether  a  conspiracy  ia 
prima  facie  made  out  when  declarations  or  acts  of  other  persons  are 
offered  against  a  defendant,  as  a,  co-conspirator.  Stephen's  Dig., 
art.  4.  Such  decisions,  though  they  do  not  mean  that  the  exist- 
ence of  the  subsidiary  fact  has  been  demonstrated,  but  only  that 
enough  has  been  shown  { o  make  it  proper  to  submit  to  the  jury  the 
testimony  offered,  are,  nevertheless,  decisions  of  questions  of  fact. 
Commonwealth  v.  Robinson,  146  Mass.  571. 


EVIDENCE.  221 

Again,  the  rule  as  stated  is  inaccurate,  on  account  of  the  ques- 
tions of  fact  decided  by  the  court,  but  not  recognized  as  such.  One 
class  of  these  is  the  interpretation  of  documents,  where  almost  the 
whole  matter  in  issue  is  the  intention  of  the  party  or  parties,  a  pure 
question  of  fact;  yet  this  is  always  called  a  question  of  law.  See 
Hamilton  v.  Ins.  Co.,  136  U.  S.  255. 

Juries  came  into  existence  after  judges,  and  some  questions  of 
fact  were  retained  by  the  latter  from  motives  of  caution  and  pub- 
lic policy.  Later,  the  judges  deprived  the  jury  of  still  other  ques- 
tions of  fact  by  judicial  legislatiom.  On  the  whole  subject,  see 
Thayer  on  Law  and  Fact,  4  Harv.  Law.  Eev.  147;  Thayer's 
Cases  on  Evidence,  148;  Keener,  Quasi  Con.  99. 

12.  What  is  decided  when  a  court  says  there  is  "  no  evidence 
to  go  to  the  jury"  or  when  a  verdict  is  reversed  as  against  evi- 
dence ? 

The  point  decided  is  that  the  evidence  is  so  clear  that  reason- 
able and  fair  men  can  hold  but  one  view.  Bridges  v.  Ry.  Co., 
L.  R.  7  H.  L.  213;  Ry.  Co.  v.  Converse,  139  U.  S.  469.  The  dis- 
tinction should  be  carefully  drawn  between  the  foregoing  and  what 
is  sometimes  supposed  to  be  the  meaning  of  such  a  ruling;  namely, 
that  according  to  the  opinion  of  the  tribunal  making  the  decision 
the  evidence  points  to  a  certain  conclusion.  "  To  ask  '  Should  we 
have  found  such  and  such  a  verdict  ?  '  is  surely  not  the  same  thing 
as  to  ask  whether  there  is  room  for  a  reasonable  difference  of 
opinion."  Brett,  M.  R.,  in  Belt  v.  Lawes,  London  "  Times,"  March 
18,  1884.  If  the  court  thinks  there  is  room  for  a  reasonable  dif- 
ference of  opinion,  it  will  not  reverse  a  verdict,  whatever  its  own 
opinion  may  be. 

13.  X.  is  struck  by  a  train  while  driving  across  the  track. 
Is  an  instruction  to  the  jury  correct  that  he  must  be  found  negli- 
gent unless  he  "  looked  and  listened"  before  crossing? 

The  States  are  divided.  New  York  holds  that  an  omission  of 
these  precautions  is  in  itself  negligence.  Lewis  v.  Long  Island  R. 
R.  Co.,  162  K  Y.  52;  Rodrian  v.  R.  R.  Co.,  125  id.  528.  Other 
States  maintain  that  no  rule  as  to  what  is  negligence  per  se  can  be 
laid  down  beforehand,  and  do  not  require  these  precautions  in- 
variably, because  in  many  conceivable  cases  their  omission  would 
not  tend  to  show  a  lack  of  ordinary  tare.  R.  R.  Co.  v.  Voelker,  129 
111.  540;  Lavarenz  v.  R.  R.  Co.,  56  Iowa/  689;  Bishop,  Non-Con. 
Law,  1043. 

II.     LEADING  RULES  OF  EXCLUSION. 

a.     Matters  Likely  to  Mislead  the  Jury  or  Complicate  the  Case;  and 
Those  of  Conjectural  Significance. 

14.  .4  workman  was  injured  by  machinery  claimed  to  have 
been  run  in  a  negligent  way.      The  fact  that  after  the  accident 


222  QUESTIONS  AND  ANSWERS. 

the  owners  took  new  precautions  in  running  it  was  offered,  and 
its  admission  denied.      Was  this  ruling  correct? 

It  was,  by  the  great  weight  of  authority.  Such  a  fact  has  only 
the  slightest  tendency  to  show  negligence  before  the  occurrence;  it 
would  distract  the  minds  of  the  jury  from  the  real  point  at  issue 
and  create  a  prejudice  against  the  defendant.  To  admit  it .  would 
put  a  premium  on  a  continuance  of  what,  in  the  light  of  the  acci- 
dent, appeared  to  be  a  dangerous  condition  of  affairs.  E.  B.  Co.  v. 
Hawthorne,  144  U.  S.  202;  Morse  v.  E.  E.  Co.,  30  Minn.  465. 

15.  Compare  the  two  following  cases,  in  both  of  which  an 
illness  of  the  plaintiff  was  alleged  to  have  been  caused  by  gas 
escaping  from  the  defendant's  pipes. 

(1.)  Evidence  excluded  of  illness  at  the  same  time  in  other 
houses  on  the  same  street  as  plaintiff's,  into  ivhich  gas  had  es- 
caped. Emerson  v.  Gas  Co.,  3  Allen,  410. 

(2.)  Evidence  admitted  of  illness  in  the  same  house  the  plain- 
tiff was  in,  occurring  at  the  same  time.  Hunt  v.  Gas  Co.,  8 
Allen,  169. 

These  two  cases,  decided  in  the  same  court,  show  that  the  rule 
as  to  facts  which  complicate  the  issue  is  one  depending  on  the 
discretion  of  the  judge.  It  is  one  of  degree,  of  more  or  less.  The 
illness  in  the  neighboring  houses  was  considered  as  of  too  slight 
significance,  since  other  material  circumstances  might  have  been 
concurrent,  while  that  in  the  same  dwelling  was  sufficiently  closer 
to  the  case  in  hand  to  carry  it  over  the  line. 

For  a  discussion  of  this  general  doctrine,  see  Darling  v.  Westmore- 
land. 52  N.  H.  401  (a  leading  case),  where  the  plaintiff's  horse,  while 
being  driven  along  the  highway,  was  frightened  by  a  pile  of  lumber,  at 
the  roadside.  Held,  that  the  testimony  by  a  witness,  that  his  horse  had 
been  similarly  affected  by  that  pile 'of  lumber,  should  not  have  been 
held  irrelevant.  Such  a  fact  goes  to  show  the  effect  of  that  lumber  on 
horses,  and  evidence  of  that  character  should  have  been  admitted  to  an 
extent  limited  only  by  the  wise  discretion  of  the  trial  judge. 

On  the  other  hand,  see  Temperance,  etc.,  v.  Giles,  33  N.  J.  Law.  2P>0.  a 
case  in  which  the  plaintiff  had  fallen  into  an  areaway  leading  from 
the  sidewalk  to  a  cellar.  Evidence  that  10,000  persons  annually 
passed  the  areaway  in  safety  was  excluded,  on  the  ground  that  it 
would  lead  the  jury  away  from  the  case  in  hand,  or,  if  accepted,  would 
necessitate  a  confusing  and  endless  inquiry  into  the  particulars  of  all 
the  10,000  cases. 

All  courts  agree  that  no  investigation  of  such  collateral  cases  in  de- 
tail is  possible;  and  perhaps  the  admission  of  such  testimony  shnply  to 
show  the  general  fact  of  the  safe  or  dangerous  character  of  the  place, 
approaches  the  golden  mean.  Dist.  of  Columbia  v.  Armes,  107  U.  S.  519. 


TCVJOENCF.  223 

16.  The  question  being  whether  a  drover  had  exercised  due 
care,  evidence  of  the  usual  practice  among  drovers  in  the  same 
district  icas  offered  to  show  the  proper  standard  of  care.     Is  this 
admissible? 

Evidence  of  the  habits  of  other  drovers  would  generally  be  ad- 
mitted, but  with  restrictions.  The  jury  should  be  clearly  in- 
structed that  such  habits  as  are  customary  are  by  no  means  con- 
clusive evidence  of  reasonable  care,  and  that  the  question  for  their 
decision  is  whether  the  care  actiially  taken  conforms  to  their  idea  of 
the  conduct  of  an  ordinarily  prudent  man.  Maynard  v.  Buck,  100 
Mass.  40;  Ey.  Co.  v.  McDaniels,  107.  U.  S.  454. 

b.     Character  of  Parties. 

17.  Define  character  as  here  used  and  state  when  evidence  on 
the  subject  is  admissible  in  criminal  cases. 

Character  means  general  reputation  in  the  neighborhood.  But 
though  this  is  supposed  to  be  an  index  of  the  person's  actual  dispo- 
sition from  which  an  inference  as  to  the  probability  of  his  commit- 
ting the  crime  may 'be  drawn,' no  direct  evidence  of  that  disposition 
can  be  admitted;  i.  c.,  particular  incidents,  showing  a  good  or  bad 
disposition,  cannot  be  examined.  Regina  v.  Rowton,  Leigh  &  Cave, 
520. 

Evidence  of  character  is  admissible  only  when  the  prisoner  opens 
the  subject  himself.  Commonwealth  v.  Hardy,  2  Mass.  317;  3 
Greenleaf  on  Evidence,  §  25. 

18.  When  is  evidence  of  character  admissible  in  civil  causes? 
Character  here    also  means  reputation,  and  the  rule  based  on 

that  meaning  is  more  logically  applied  than  in  criminal  procedure. 
Such  evidence  is  never  admitted  in  civil  cases,  unless  reputation 
is  one  of  the  elements  of  the  plaintiff's  case,  as  in  libel  and  slander. 
There  the  reputation  of  the  plaintiff  may  be  shown  by  the  defend- 
ant, in  order  to  prove  that  he  had  little,  if  any,  to  lose  by  the  al- 
leged libel  or  slander.  Scott  v.  Sampson,  8  Q.  B.  Div.  491;  1  Jones 
on  Evidence,  §  148;  Stone  v.  Varney,  7  Mete.  (Mass.)  86. 

In  accident  cases,  a  general  reputation  for  carefulness  is  also 
sometimes  admitted  when  the  accident  has  occurred  with  no  eye- 
witnesses, and  no  other  evidence  is  available.  R.  R.  Co.  v.  Rob- 
bins,  43  Kan.  145. 

c.     Rule  Against  Hearsay  and  Exceptions. 

19.  What  is  hearsay  evidence  and  why  is  it  excluded? 

Hearsay  is  "that  kind  of  evidence  which  does  not  derive  its 
value  solely  from  the  credit  to  be  given  to  the  witness  himself,  but 
rests  also  in  part  on  the  veracity  and  competency  of  some  other 
person."  1  Greenleaf  on  Evidence,  §§  98,  100,  124. 


224  QUESTIONS   AND  AXSWEES. 

The  general  rule  is,  that  it  is  excluded  when  offered  to  prove 
the  existence  or  the  happening  of  the  fact  to  which  it  relates;  and 
the  rule  exists,  not  because  such  evidence  has  no  probative  force, 
but  because  what  force  it  has  is  frequently  so  slight  as  to  be  mis- 
used by  a  jury,  because  there  is  no  cross-examination,  and  because 
the  door  would  be  opened  to  fraud  by  its  admission.  Marshall, 
Ch.  J.,  in  Mima  Queen  v.  Hepburn,  7  Cranch,  296i 

It  should  be  remembered,'  however,  that  such  statements  at 
second-hand  are  frequently  useful  and  admissible  for  other  pur- 
poses than  to  prove  the  fact  to  which  they  relate.  An  illustration 
is  the  admission,  in  a  suit  for  malicious  prosecution,  of  representa- 
tions as  to  facts,  made  to  the  prosecutor  before  he  instituted  -the 
prosecution.  They  tend  to  show  that  he  had  reasonable  and  prob- 
able cause  for  charging  the  crime.  Bacon  v.  Towne,  4  Cush.  217; 
1  Greenleaf  on  Evidence,  §  100. 

The  exceptions  which  are  attached  to  the  rule  against  hearsay  are 
the  most  important  part  of  it.  Considered  as  a  whole  they  are  illogical 
and  arbitrary,  but  they  grew  up  singly  from  hard  cases,  and  to  this 
Is  partly  due  their  lack  of  system. 

In  exceptions  1,  2,  3,  4  and  7  (as  numbered,  infra),  the  declarant  must 
be  dead.  Stephen's  Digest  on  .Evidence,  art.  25,  and  the  cases  cited 
below.  Logically,  the  permanent  insanity  or  the  absence  from  the 
jurisdiction  of  the  declarant  are  equally  good  reasons  for  ad- 
mitting his  statements  in  evidence,  and  in  many  instances  that 
principle  has  been  laid  down.  Union  Bank  v.  Knapp,  3  Pick.  96;  North 
Bank  v.  Abbot,  13  id.  465;  Reynolds  v.  Manning,  15  Md.  510,  523;  Dray- 
ton  v.  Wells,  1  Nott  &  McC.  (S.  C.)  409. 

(1)  EXCEPTION  AS  TO  EEPORTED   TESTIMONY. 

20.  What  is  the  scope  of  this  exception  to  the  rule  against 
hearsay  evidence? 

It  extends  to  this,  that  evidence  is  admissible  of  what  was 
stated  by  a  witness,  since  dead,  insane  or  out  of  the  jurisdiction,  on 
a  former  trial  of  substantially  the  same  issue  between  the  same 
parties  or  those  identified  in  interest  with  them,  full  opportunity 
for  cross-examination  having  been  enjoyed  by  the  party  against 
whom  it  is  offered.  Here,  obviously,  the  most  important  objections 
to  hearsay  are  removed  by  the  statements  being  under  oath,  and 
by  the  opportunity  for  cross-examination.  Stephen's  Dig.  Ev.,  art. 
32;  Drayton  v.  Wells,  1  X.  &  McC.  409;  U.  S.  v.  Macomb,  5  Mc- 
Lean, 286. 

(2)    EXCEPTION  AS  TO  DYING  DECLARATIONS. 

21.  IVhat  is  the  scope  of  this  exception? 

Under  this  rule  the  declarations  of  a  dying  person,  who  believes 
himself  to  be  in  that  condition  (Regina  v.  Morgan,  11  Cox  C.  C. 


EVIDENCE.  225 

337),  are  admitted  in  a  prosecution  for  homicide  (People  v.  Davis, 
56  X.  Y.  95),  when  they  relate  to  the  cause  of  the  declarant's  death. 
King  v.  Mead,  2  B.  &  C.  605.  They  were  admitted  originally 
on  the  ground  that  peculiar  credit  was  due  to  statements  made 
in  fear  of  immediate  death,  but  probably  the  rule  can  at  present 
rest  better  on  the  necessity  of  the  case,  since  it  is  rare  that  there 
are  eye-witnesses  of  such  crimes.  It  is  the  narrowest  of  all  the  ex- 
ceptions to  the  hearsay  rule. 

(3)     EXCEPTION  AS  TO  PEDIGREE. 

22.  To  what  classes  of  facts  does  this  exception  r&fer,  and 
by  ichom  must  the  statement  be  made? 

It  refers  to  times  and  places  of  births,  marriages  and  deaths, 
legitimacy,  consanguinity,  and  the  like,  and  rests  upon  the 
probability  that  the  persons  speaking  know  the  facts,  and  have 
no  temptation  to  misrepresent  them.  The  statement  must  have 
been  by  someone  related  by  blood  to  the  person  whose  pedigree 
is  in  question,  or  by  the  husband  or  wife  of  a  person  so  related. 
Johnson  v.  Lawson,  2  Bing.  86;  Fulkerson  v.  Holmes,  117  U.  S. 
389,  397. 

A  restriction  as  to  the  time  of  making  the  declaration,  which 
applies  only  to  this  and  one  other  exception  to  the  hearsay  rule, 
is  that  it  must  have  been  made  before  any  controversy  arose  on  the 
point  (ante  litem  mot  am).  Berkeley  Peerage  Case,  4  Campb.  401. 

23.  How  far  does  this  exception  extend?     Does  it  allow  such 
evidence  to  establish  any  fact  of  a  pedigree  whenever  that  fact 
may  be  in  issite,  as,  for  instance,  to  prove  the  age  of  one  alleging 
Tiimself  an  infant? 

There  is  some  authority-  that  it  does,  (North  Brookfield  v.  War- 
Ten,  16  Gray,  171);  and  logically  that  position  is  plausible.  But 
these  exceptions  are  not  built  up  logically,  and  the  weight  of  au- 
thority is  that  such  evidence  is  good  only  when  the  case  involves  a 
question  of  family.  Haines  v.  Guthrie,  13  Q.  B.  Div.  818,  per 
Brett,  M.  R.:  Ins.  Co.  v.  Schwenk,  94  U.  S.  593,  598;  2  Jones  on 
.  Evidence,  §  318. 

(4)    MATTERS   OF   PUBLIC    OR  GENERAL    INTEREST. 

24.  What  is. the  basis  and  what  are  the  limitations  of  this  ex- 
ception? • 

It  is  founded  partly  on  the  supposition  that  even'  one  is  inter- 
ested in  such  matter?' (and  the  consequent  probability  of  the  truth 
of  the  common  tradition),  and  partly  on  necessity,  the  beginnings 
of  public  rights  often  lying  back  of  the  generation  when  the  oues- 
tion  arises.  Hence,  common  repute  on  a  matter  of  this  kind,  as 
15 


226  QUESTIONS  AND  ANSWERS. 

shown  by  the  statements  of  'a  deceased  person,  is  admitted.  "Weeks 
v.  Sparke,  1  Man.  &  Sel.  679. 

In  America,  the  rule  is  in  many  States  much  broader,  and  such 
evidence  is  admitted  to  show  the  location  of  private  boundaries, 
especially  when  a  large  tract  has  been  divided  up.  Morton  v. 
Folger,  15  Cal.  275;  Harriman  v.  Brown,  8  Leigh,  707. 

The  statement,  like  those  in  pedigree  cases,  must  have  been  made 
"  ante  litem  motam."  1  Greenleaf  on  Evidence,  §  131. 

(5)     ANCIENT  DOCUMENTS,  ANCIENT   POSSESSION   AND  THE   LIKE. 

25.  What  is  meant  by  saying  that  a  document  over  thirty 
years  old  "  proves  itself  "  ? 

This  means,  that  if  it  comes  from  proper  custody,  it  is  ad- 
missible in  evidence  without  further  proof  of  its  due  execution. 
If  it  purports  to  show  an  exercise  of  ownership  over  land,  such  as 
a  lease  or  a  license,  it  is  admissible  to  show  such  ownership,  though 
no  actual  possession  under  it  appears.  Such  documents  are  of 
slight  weight,  however,  unless  acts  of  possession  under  them  or 
other  acts  under  similar  papers  of  a  later  date  are  adduced,  Mal- 
colmson  v.  O'Dea,  10  H.  of  L.  Cases,  593;  Boston  v.  Richardson, 
105  Mass.  351. 

(6)    REGULAR  ENTRIES  IN  THE  COURSE  OF  BUSINESS. 

26.  What  was  the  "  shop-bock  exception/'*  formerly  so  promi- 
nent? 

This  was  a  rule  recognized  early  by  the  common  law,  and  also  by 
statute  (7  Jac.  I,  chap.  12,  cited  Taylor  on  Evidence,  641a),  by 
which  entries  in  the  shop-books  of  small  tradesmen  were 
admissible  under  certain  restrictions  in  actions  by  them 
against  their  customers.  The  practice  was  brought  to  this 
country  and  nourished  with  more  or  less  vigor  in  many  of  the 
States.  See  note  to  Price  v.  Torrington,  1  Smith's  Lead.  Cas.  (8th 
ed.)  752,  for  the  rules  in  the  separate  jurisdictions;  also  Faxon 
v.  Hollis,  13  Mass.  427:  Eastman  v.  Moulton,  3  N.  H.  156;  Vos- 
burgh  v.  Thayer,  12  Johns.  461. 

But  the  topic  is  of  comparatively  small  importance,  now  that 
parties  can  testifv  in  their  own  behalf.  Shove  v.  Wiley.  18  Pick. 
558;  Anchor  Milling  Co.  v.  Walsh,  108  Mo.  277;  s.  c.,  32  Am.  St. 
Rep.  600. 

27.  What  is  the  rule  as  to  entries  in  the  books  of  third  per- 
sons? 

The  rule  is  that  contemporaneous  entries  made  in  the  regular 
course  of  business  are  admissible  after  the  death  of  the  person  mak- 

*  Not  an  exception  to  the  hearsay  rule,  but  considered  here  because  closely  allied  to 
that  subject, 


EVIDENCE.  227 

ing  them,  whether  he  made  them  in  the  course  of  his  employ- 
ment or  simply  as  an  habitual  practice.  Welsh  v.  Barrett, 
15  Mass.  380;  Xichols  v.  Webb,  8  WTieat.  326;  Augusta  v.  Windsor, 
1(J  M2.  317.  This  exception  is  an  exceedingly  useful  one,  and  in 
fact  is  based  chiefly  on  the  extreme  inconvenience  of  shutting  out 
such  evidence.  Entries  of  the  kind  are  moreover  in  all  probability 
reliable  and  accurate. 

An  important  extension  has  been  made  by  which  such  entries  go  In 
as  evidence,  during  the  lifetime  of  the  person  making  them.  In  Shove 
v.  Wiley,  supra,  the  leading  case,  the  witness  had  no  recollection  of  a 
certain  transaction,  but  his  entry  made  in  the  regular  course  of  busi- 
ness was  admitted  on  his  swearing  to  habits  of  accuracy  and  care. 
See  also  Bank  v.  Culver,  2  Hill,  531  (and  a  still  broader  ruling  — as  to 
any  contemporaneous  memorandum,  Guy  v.  Mead,  22  N.  Y.  462). 

(7)     DECLARATIONS    AGAINST    INTEREST. 

28.  Against  what'"  interest  "  must  the  declaration  be?     And 
what  is  the  basis  of  this  exception? 

It  must  be  against  the  pecuniary  or  proprietary  interest  of  the  (de- 
ceased) declarant.  The  reason  of  the  exception  is,  that  a  man  is 
very  unlikely  to  commit  himself  by  acknowledging  that  money  has 
been  paid  him,  or  that  someone  else  owns  land  of  which  he  is  in  pos- 
session, when  such  is  not  the  fact.  Higham  v.  Ridgway,  10  East, 
109;  Currier  .v.  Gale,  14  Gray,  504;  Taylor  on  Evidence  (8th  ed.), 
§  670. 

29.  What  other  features  are  noticeable  in  regard  to  this  ex- 
ception? 

The  circumstance  from  \vhich  it  derives  its  peculiar  usefulness 
is,  that  whatever  statements  axe  bound  up  in  the  acknowledgment 
of  indebtedness,  tenancy  or  the  like,  go  in  with  it.  The  acknowl- 
edgment gains  them  admission,  and  they  can  then  be  used  for 
what  they  may  be  worth.  Davies  v.  Humphreys,  6  M.  &  W.  153; 
Livingston  v.  Arnoux,  56  N.  Y.  507,  519. 

Oral  declarations,  though  of  less  weight,  are  admissible  as  freely 
as  written  ones.  Hinckley  v.  Davis,  6  N.  H.  210;  County  of  Ma- 
haska  v.  Ingalls,  16  Iowa,  81  (per  Dillon,  J.,  containing  a  review 
of  the  subject).  Contra,  Lawrence  v.  Kimball,  1  Mete.  527. 

(8)   DECLARATIONS  AS  TO  MENTAL  OR  PHYSICAL  CONDITION. 

30.  How  far  are  such  declarations  admissible? 

The  general  rule  is,  that  they  go  in,  whenever  intention,  mental 
capacitv,  pain  and  the  like  become  material;  and  the  reason  for 
it  i?  thus  stated  in  Ins.  Co.  v.  Hillmon,  (1892),  145  U.  S. 


228  QUESTIONS  AND  ANSWERS. 

285:  "  These  expressions  are  the  natural  reflexes  of  what  it  might 
'be  impossible  to  show  by  other  testimony.  *  *  *  .  Such  decla- 
rations are  regarded  as  verbal  acts."  And  see  Waterman  v.  Whit- 
ney, 11  N.  Y.  157,  a  case  where  declarations  of  a  testator  were 
brought  in  to  show  mental  capacity.  . 

It  is  obvious  that  the  declarations  are  admitted "  only  to  show 
the  state  of  mind  or  body  at  the  time  they  were  made.  "  All  narra- 
tion must  be  excluded."  Ins.  Co.  v.  Mosley,  8  Wall.  397.  On  the 
whole  topic,  see  2  Jones  on  Evidence,  §§  352,  353: 

(9)  DECLARATIONS  PART  OF  SOME  FACT  ITSELF  ADMISSIBLE   RES 

OESTA). 

31.  State  the  scope  of  this  exception  (apparent  only,  accord- 
ing to  Oreenleaf). 

As  the  heading  indicates,  the  declaration  is  admissible  as  quali- 
fying or  explaining  an  act  which  is  in  itself  admissible.  "  Where 
an-  act  done  is  evidence  per  sc,  a  declaration  accompanying  it  may 
well  be'  evidence,  if  it  reflects  light  upon  or  qualifies  the  act." 
Wright  v.  Tatham,  7  A.  &  E.  361.  Yet,  though  the  declaration 
must  be  practically  contemporaneous  with  the  act,  mere  nearness 
in  time  is  not  enough.  R.  R.  Co.  v.  O'Brien,  119  U.  S.  99.  "  The 
declaration  must  not  be  mere  narrative,  *  *  *  but  must  have 
been  well  calculated  to  unfold  the  nature  and  quality  of  the  acts 
it  was  intended  to  explain."  Rockwell  v.  Taylor,  41  Conn.  55. 
And  see  also,  for  full  discussion,  Waldele  v.  R.  R.  Co.,  97  N.  Y. 
274.  • 

d.     Opinion. 

32.  Where  is  the  line  drawn  between  "  facts,"  and  .inferences 
from  them,  so  as  to  exclude  testimony  of  the  latter  class? 

It  is  not  easy  to  lay  down  a  rule,  for  every  sensation  involves  an 
exercise  of  judgment.  Whenever  the  conclusion  is  so  simple  as  to 
be  unconscious,  that  conclusion  may  be. regarded  as  a  fact;  it  is 
known,  so  far  as  anything  can  be.  But  when  a  conclusion  is 
reached  by  a  conscious  process  of  reasoning,  or  when  different  per- 
sons might  reasonably  reach  different  conclusions,  the  result  is  an 
opinion, 'and  is  inadmissible.  Thayer's  Cases  on  Evidence,  672, 
note  by  Geo.  C.  Lewis;  Ins.  Co.  v.  Lathrop,  111  IT.  S.  612. 

33.  Is  it  permissible  to  ask  an  "  expert,"  i.  e.,  one  of  special 
skill  and  knowledge  on  the  subject  in  question,  what  is  his  opin- 
ion "  on  the  evidence  "  in  a  case? 

No.  The  proper  way  to  question  him  is  to  assume  the  truth  of 
certain  facts  as  a  foundation  for  his  opinion,  and  then  ask  some  such 
question  as  "  These  being  true,  would  so  and  so  follow,  in  your 
opinion?  "  In  this  way  the  jury  can  see  upon  what  facts  the  ex- 


EVIDENCE."  229 

pert  bases  his  judgment,  and  their  province,  viz.:  to  determine  the 
effect  of  the  evidence  actually  given,  is  not  invaded.  People  v. 
McElvaine,  121  N.  Y.  250;  Hunt  v.  Gas  Light  Co.,  8  Allen,  169. 

34.  Under  what  restrictions  is  the  opinion  of  a  nonprofes- 
sional  witness  admissible  as  to  the  sanity  of  an  individual? 

His  judgment  must  be  based  upon  personal  knowledge  of  the 
circumstances  involved  in  the  inquiry,  and  his  opinion  must  come 
in  as  a  summary,  after  he  has  stated  in  more  or  less  detail  the  facts 
on  which  he  bases  it.  On  these  terms,  by  the  weight  of  authority, 
the  opinions  of  ordinary  witnesses  on  that  subject  are  admissible, 
partly  because  such  a  judgment  approaches  a  "fact"  as  defined 
above,  and  partly  because  of  the  practical  impossibility  of  a  witness's 
bringing  before  a  jury  all  the  circumstances  necessary  for  them  to 
form  a  correct  conclusion.  Ins.  Co.  v.  Lathrop,  111  U.  S.  612; 
Dunham's  Appeal,  27  Conn.  192;  Hardy  v.  Merrill,  56  N.  H.  227. 
Contra,  Clapp  v.  Fullerton,  34  N.  Y.  190;  and  also  (on  grounds  of 
public  policy),  Commonwealth  v.  Fairbanks,  2  Allen,  511. 

35.  How  would  you  prove  a  signature  genuine? 

There  are  at  least  three  ways,  the  third  of  which  only  has  raised 
question:  (1)  testimony  as  to  its  genuineness,  by  one  who  has  seen 
the  alleged  author  of  the  signature  write  other  things  (even  if  only 
once);  (2)  testimony  by  one  whose  acquaintance  with  the  hand- 
writing is  gained  from  business  dealings  with  the  alleged  author; 
(3)  comparison,  by  any  witness  of  skill  in  such  matters,  of 
the  writing  in  dispute  with  other  writings  proved  to  be 
genuine.  In  general,  the  last  method  is  allowed  not  only 
where  the  documents  containing  the  writings  proved  to  be  genuine 
and  used  as  a  standard  for  comparison,  are  already  before  the  court 
in  the  suit,  but  even  where  they  are  brought  in  simply  for  the  pur- 
pose. Moody  v.  Rowell,  17  Pick.  490;  Lyon  v.  Lyman,  9  Conn.  61. 
Some  courts  have  shut  them  out  in  the  latter  case,  because  the  proof 
of  their  genuineness  tends  to  complicate  the  case.  Vinton  v.  Peck, 
14  Mich.  287.  But  the*e  are  in  the  nlain  overridden  by  statute. 
See  Rogers  on  Expert  Testimony  (2d  ed.).  131. 

III.  WRITINGS. 
a.     Proof  of  Contents. 

36.  What  is  the  "Best  Evidence"  rule? 

This  rule  is  that  in  proving  a  disputed  fact,  the  best  legal  evi- 
dence which  can  be  had  must  be  produced.  In  practice,  the  ap- 
plication of  the  rule  has  to  do  almost,  if  not  quite,  exclusively  with 
the  proof  of  the  contents  of  writings.  "  Primary  "  evidence  of 
the  contents,  as  explained  below  (Xo.  37),  must  be  produced,  or  its 
absence  accounted  for;  or  to  state  the  rule  the  other  way,  evidence 


230  QUESTIONS  AND  ANSWERS. 

which  on  its  face  shows  that  better  evidence  exists,  as  for  example, 
a  copy  of  the  document,  is  inadmissible,  unless  good  reason  is  given 
for  the  nonappearance  of  the  higher  grade.  1  Best  on  Evidence, 
§§  87-89;  1  Jones  on  Evidence,  §§  197-198. 

As  formerly  laid  down,  the  rule  ran  that  one  must  bring  the  best 
evidence  he  could,  and  if  he  did  that  it  was  enough.  Even  as  late 
as  McKinnon  +.  Bliss,  21  N.  Y.  218,  it  is  stated  that  "  the  best  evi- 
dence of  which  the  nature  of  the  case  admits  is  always  receivable," 
although  the  error  of  such  a  statement  had  been  pointed  out  as  early 
as  1794,  by  Christian,  in  the  twelfth  edition  of  Blackstone,  as  follows: 

"  If  the  best  legal  evidence  cannot  be  produced,  then  the  next  best 
Jeyal  evidence  shall  be  admitted.  *  *  *  Secondary  evidence  is  as 
accurately  denned  by  the  law  as  primary.  But  in  general,  the  want  of 
better  evidence  can  never  justify  the  admission  of  hearsay,  interested 
witnesses,"  etc.  See  note  by  Prof.  Thayer,  in  his  Cases  -on  Evidence, 
p.  732. 

37.  What  are  the  important  classes  of  primary  evidence  in 
proving  a  document? 

(1)  The  document  itself,  the  authorship  being  proved  as  shown 
below. 

(2)  Admissions  made  by  the  other  party  or  those  under  whom  he 
claims  (see  Ques.  7-9),  and  covering  the  same  subject-matter  as 
the  document.     Slatterie*v.  Pooley,  6  M.  &  W.  664;  Smith  v.  Pal- 
mer, 6  Cush.  513,  520.   But  this  rule  is  not  universal.    Jenner  v. 
Joliffe,  6  Johns.  9. 

(3)  Duplicate  originals;  or  any  one  of  a  number  of  documents 
all  made  by  printing,  photography  or  any  other  process  of  a  nature 
to  insure  uniformity,  of  result.      Eex  v.  Watson,  2  Stark.   116; 
Stephen's  Dig.  Ev.,  art.  64. 

38.  What  are  the  chief  classes  of  secondary  evidence  and  when 
are  they  admissible  to  show  the  contents  of  a  document? 

They  are  (1)  copies  of  the  original  (certified  or  otherwise*);  and 
(2)  oral  evidence  of  the  contents  by  one  who  has  seen  the  writing. 
See  Stephen's  Dig.  Ev.,  art.  70. 

Secondary  evidence  is  admitted:  (1)  Where  the  original  is  a  pub- 
lic document,  such  records  being  too  valuable  to  be  moved  about 
the  country.  Marsh  v.  Collnett,  2  Esp.  665;  s.  c.,  Thayer's  Cases 
on  Evidence,  733;  Delafield  v.  Hand,  3  Johns.  310,  313.  (2) 
Where  the  original  has  been  lost  or  destroyed,  and  a  proper  search 
has  been  made.  Sugden  v.  Lord  St.  Leonards,  1  Prob.  Div.  154 
(a  lost  will);  Davis  v.  Sigourney,  8  Mete.  487.  (3)  Where  the 

*  By  the  weight  of  authority  all  classes  of  secondary  evidence  stand  on  an  equality; 
that  is,  as  soon  as  the  absence  of  primary  evidence  is  accounted  for.  oral  evidence  is  ns 
readily  admissible  as  a  certified  copy.  Doe  v.  Ross.  7  M.  &  W.  103  ;  Goodrich  v.  Weston, 
102  Mass.  362.  Contra,  scmble,  Stebbins  v  Duncan,  108  U.  S.  43. 


EVIDENCE.  231 

original  appears  to  be  in  the  power  of  the  adverse  party  and  he 
refuses  to  produce  it  on  notice,  or  without  notice,  if  on  the  plead- 
ing -he  must  be  supposed  to  have  notice.  Howell  v.  Huyck,  2  Abb. 
App.  Cas.  (N.  Y.)  423;  Riggs  v.  Tayloe,  9  Wheat.  483,  486. 
(4)  Under  various  statutory  provisions. 

b.     Proof  of  Authorship. 

39.  How  would  you  prove  that  a  document  was  actually  exe- 
cuted by  the  person  who  appears  to  have  done  so? 

The  inflexible  common-law  rule,  which  is  still  the  prevailing 
doctrine  except  where  modified  by  statute,  was  that  when  an  in- 
strument was  produced,  the  execution  of  which  appeared  to  be  at- 
tes^d  by  witnesses,  at  least  one  of  the  witnesses  should  be  called 
to  prove  such  execution  if  living,  competent  and  within  the  reach 
01  the  process  of  the  court;  and  this  rule  held  even  if  the 
person  who  appeared  to  have  executed  the  document  admitted  the 
'fact.  Rex  v.  Harringworth,  4  M.  &'S.  350. 

The  witness  was  said  to  have  been.  selected  by  the  party  to  prove 
what  occurred  at  the  execution.  See  1  Greenleaf  on  Evidence, 
§  569  et  seq. 

The  exceptions  to  the  rule  are:  (1)  Ancient  documents,  which 
"prove  themselves"  (see  Ques.  25);  (2)  Where  the  adverse  party 
produces  the  instrument,  and  claims  an  interest  under  it.  Pearce 
v.  Hooper,  3  Taunt.  60.  (3)  Where  the  witness  is  dead,  insane  or 
beyond  seas.  Brigham  v.  Palmer,  3  Allen,  450.  (4)  Where  the 
document  is  only  incidentally  in  issue  in  the  case.  Demonbreun 
v.  Walker,  4  Baxt.  (Tenn.)  *199. 

c.     Alterations. 

•tO.  //  one  seeks  to  recover.  on  an  instrument  which  bears 
marks  of  alteration,  what  is  the  rule  as  to  proof  of  the  time  when 
th#  alterations  were  made? 

It  is  stated  in  various  ways,  but  most  frequently  that  there  is  a 
presumption  that  the  alterations  were  made  subsequent  to  the 
execution  of  the  instrument.  The  real  meaning  of  this  is  that 
there  is  no  presumption  either  way,  but  that  the  person  relying  on 
an  instrument  so  altered  must  establish  its  genuineness.  It  is 
absurd  to  say  the  plaintiff  is  always  in  the  wrong.  See  Hill  v. 
Barnes,  11  N.  H.  395  (promissory  note);  Ely  v.  Ely,  6  Gray,  439 
(deed):  Grossman  v.  Grossman,  95  N.  Y.  145  (will);  and  .1  Green- 
on  Evidence,  §  564. 


41.  What  is  the  effect  of  an  alteration  in  a  material  part  of  a 
deed? 

The  former  rule,  that  any  such  alteration,  by  whomsoever  made, 
avoided  the  instrument  (Pigot's  Case,  11  Co.  27),  has  been  modified. 


232  QUESTIONS  AND  ANSWERS. 

At  present  the  deed  is  only  void,  if  the  alteration  is  by  a  party  or 
one  privy  to  him,  without  the  consent  of  the  other  party.  Bige- 
low  v.  Stephens,  35  Vt.  521;  Gleason  v.  Hamilton,  138  N.  Y.  353. 

d.     The  "  Parol  Evidence  "  Rule. 

42.  State  the  rule,  the  reason  for  its  existence,  and  the  gen- 
eral limitations  on  its  operation. 

The  rule  is  that  when  any  agreement  between  parties  or  any 
transfer  of  property  has  been  put  into  the  form  of  a  document,. 
i.  e.,  into  a  formal  writing,  the  terms  of  that  written  statement  can- 
not be  contradicted,  altered  or  added  to  by  any  oral  evidence  which 
would  tend  to  show  that  the  parties  understood  or  meant  something 
different  from  what  the  written  words  say.* 

It  is  assumed  that,  when  men  adopt  this  deliberate  form  of  ex- 
pression instead  of  leaving  their  agreement  in  verbal  form,  they 
mean. the  writing  to  be  final,  and,  therefore,  have  used  language, 
which  corresponds  to  their  actual  intentions.  1  Greenleaf  on  Evi- 
•  dence,  §  275;  Stephen's  Dig.  Ev.,  art.  90.  This  reason  for  the 
rule  affects  only  those  who  are  parties  to  the  writing,  and  the  rule 
consequently  binds  only  them  and  their  representatives.  It  doe& 
Hot  shut  off  strangers  from  introducing  oral  testimony  of  the 
actual  facts  of  the  transaction,  which  may  have  a  bearing  upon 
their  interests,  even  though  these  may  be  entirely  contradictory  to- 
the  writing.  Stephen's  Dig.  Ev.,  art.  92;  McMaster  v.  Ins.  Co.,  55 
N.  Y.  222,  234. 

For  obvious  reasons,  also,  oral  evidence  may  be  used  to  overthrow 
the  writing  by  showing  fraud,  duress,  illegality,  mistake,  want  of 
consideration  or  the  disability  of  a  party  from  infancy  or  the 
like.  1  Greenleaf  on  Evidence,  §  284. 

43.  Suppose  a  party  wishes  to  show  that,  besides  the  writing, 
there  was  also  a  verbal  agreement,  as,  for  instance,  a  promise 
by  a  grantor  of  land  to  grade  and  build  a  street  on  land  adjoin- 
ing that  granted.      Can  he  do  so? 

The  test  given  by  Stephen  is  quoted  with  approval  in  Durkin 
v.  Cobleigh,  156  Mass.  108.  "  The  existence  of  any  separate  oral 
agreement  as  to  any  matter  on  which  a  document  is  silent,  and 
which  is  not  inconsistent  with  its  terms,  if  from  the  circumstances 
of  the  case  the  court  infers  that  the  parties  did  not  intend  the  docu- 
ment to  be  a  complete  and  final  statement  of  the  whole  transaction 
between  them,"  may  be  proved.  Stephen's  Dig.  Ev.,  art.  90.  In 
Durkin  v.  Cobleigh,  the  agreement  to  build  the  street  was  ad- 
mitted. See  Naumberg  v.  Young,  44  N.  J.  L.  331,  for  a  decision 
excluding  evidence  of  an  oral  undertaking  as  to  the  condition  of 
a  boiler  in  a  factory  leased  by  the  defendants. 

*  Study  questions  44  and  45  in  connection  with  this  statement  of  the  rule. 


EVIDENCE.  233 

44.  It  is  obvious  that  even  after  a  close  study  of  a  will  or  other 
instrument  by  itself,  it  does  not,  as  a  rule,  dearly  appear  what 
the  language  employed  by  the  parties  means,  or  what  is  the  scope 
and  bearing  of  the  document.     How  far  may  the  Court  en- 
lighten itself  by  outside  evidence*  as  to  the  circumstances  sur- 
rounding the  case? 

Baron  Parke  in  Shore  v.  Wilson,  9  Ol.  &  F.  555,  divides  the 
evidence  admissible,  for  this  purpose,  into  two  classes.  The  first 
is  outside  evidence  to  explain  foreign  or  technical  words,  or  those 
having  a  peculiar  local  usage..  The  second  class  of  such  evi- 
dence he. describes  as  "every  material  fact  which  will  enable  the 
court  to  place  itself  as  near  as  may  be  in  the  situation  of  the 
parties"  to  the  instrument,  is  admissible.  Judge  Holmes,  in 
Doherty  v.  Hill,  144  Mass.  468,  says:  "In  every  case  the  words 
used  must  be.  translated  into  things  and  facts  by  parol  evidence." 

We  append  in  a  note,f  the  first  three  of  the  rules  formulated  by 
Wigram  in  his  Treatise  on  Extrinsic  Evidence  in  Aid  of  the  Inter- 
pretation of  Wills.  They  apply  equally  to  other  writings.  See 
also  1  Greenleaf  on  Evidence,  §§  286-289,  inclusive. 

45.  What  is  meant    by  the  terms  "patent"  and  "latent" 
ambiguity?  and  how  does  the  existence  of  a  latent  ambiguity 
modify  the  general  rules  of  admitting  outside  evidence? 

The  meaning  of  these  terms  is  thus  stated  by  their  originator, 
Lord  Bacon.  A  patent  ambiguity  is  "  that  which  appears  to  be 
ambiguous  upon  [the  face  of]  the  deed  or  instrument."  A  latent 
ambiguity  is  "  that  which  seemeth  certain  for  anything  that  ap- 
peareth  upon  the  instrument,  but  there  is  some  collateral  matter 
out  of  the  deed,  that  breedeth  the  ambiguity."  For  example,  "  I 
give  all  my  horses  to  my  nephew  John  or  Thomas,"  is  obviously 
ambiguous  in  itself;  but  "I  give  all  my  horses  to  my  nephew  John," 
is  by  itself  clear  of  any  doubt,  and  only  becomes  ambiguous  when 
it  appears  that  there  were  two  nephews  by  the  name  of  John.  See 

*  By  "outside  evidence"  we  mean  evidence  of  any  fact  not  appearing  in  the  writing 
itseif. 

1 1  A  testator  is  always  presumed  to  use  the  words  in  which  he  expresses  himself  a<  cord 
ing  to  their  strict  and  primary  acceptation,  unless  front,  t/ie  context  of  iht  will  it  nppeart 
that  he  has  used  them  in  a  different  sense ;  in  which  case  the  sense  in  which  he  thus 
appears  to  have  used  them  will  be  the  t>ense  in  which  they  are  to  be  construed. 

II.  Where  there  is  nothing  in  the  context  of  a  will,  from  which  it  is  apparent  that  a 
testator  has  used  the  words  in  which  he  has  expressed  himself  in  any  other  than  their 
strict  and  primary  sense,  and  where  his  words  no  interpreted  are  sensible  with  reference 
to  extrinsic  circumstances  it  is  an  inflexible  rule  of  construction,  that  the  words  of  the 
will  shail  be  interpreted  in  their  strict  and  primary  sense,  and  in  no  other,  although  they 
may  be  capable  of  some  popular  or  secondary  interpretation,  and  although  the  most 
conclusive  evidence  of  int-ntion  to  use  them  in  such  popular  or  secondary  sense  be 
tendered. 

III.  Where  there  is  nothing  in  the  context  of  a  will,  from  which  it  is  apparent  that  a 
testator  has  used  the  words  in  which  he  has  expressed  himself  in  any  other  than  their 
strict  and  primary  sense,  but  his  words,  so  interpreted,  are  insensible  with  reference  to 
extrinsic  cirnim  tmif-s,  a  court  of  law  n.ay  look  into  the  extrinsic  circumstances  of  the 
case  to  see  whether  the  meaning  of  the  words  be  sensible  in  any  popular  or  secondary 
•ense,  of  which,  with  reference  U>  thete  circumstances,  they  are  capable. 


234  QUESTIONS  AND  ANSWEES. 

1  Greenleaf  on  Evidence,  §§  297-300,  and  as  to  the  uselessness  of 
the  phraseology,  3  Harv.  Law  Rev.  332. 

The  rules  governing  the  evidence  admissible  to  remove  ambigui- 
ties, so  far  as  the  mass  of  decisions  can  be  reconciled,  are  appa- 
rently as  follows: 

1.  To  remove  a  patent  ambiguity  the  usual  rule  of  interpretation 
fixes  the  limit,  namely,  evidence  to  show  the  situation  and  sur- 
rounding circumstances  in  which  the  testator  was,  and  with  refer- 
ence to  which  he  presumably  acted.     See  Ques.  42  and  44. 

2.  When  a  latent  ambiguity  occurs  a  further  step  is  taken, 
which  establishes  the  great  exception  to  the  ordinary  rules  of  con- 
struing writings.     The  direct  declarations  of  the  testator,  i.  e., 
his  statements  of  what  he  meant  by  the  words  used  in  his  will,  are 
to  be  admitted.*     A  prerequisite  to  the  admission  of  such  state- 
ments is  that  the  words  used  in  the  will  furnish  a  clear  description 
of  two  or  more  persons  or  things,  for  the  theory  is  that  the  testator 
has  actually  described  what  he  means,  but  that  by  accident  the 
words  fit  another  person  or  thing  equally  well.     "  To  my  nephew," 
for  example,  would  not  be  sufficient  to  let  in  the  testator's  direct 
statements.    Doe  d.  Hiscocks  v.  Hiscocks,  5  M.  &  W.  363;  Bodman 
v.  Tract  Society,  9  Allen,  447;  1  Greenleaf  on  Evidence,  §§  289, 
290,  notes,  and  cases  cited. 

IV.    WITNESSES. 

46.  What  classes  of  persons  were  considered  at  common  law 
incompetent  to  testify?  and  what  are  the  rules  at  present? 

The  common  law  excluded  infidels,  i.  e.,  those  not  believing  in 
a  God  or  a  punishment  by  Him  for  swearing  falsely  (Omichund  v. 
Barker,  Willes,  538;  s.  c.,  Thayer's  Cases  on  Evidence,  1081);  those 
insane;  not  of  sound  mind;  or  legally  infamous  (convicted of  certain 
crimes);  and,  especially,  interested  persons.  Thurston  v.  Whitney, 

2  Gush.  104. 

These  disqualifications  have  been  largely  modified  by  decision 
and  statute  with  this  general  result:  (1)  In  many  States  it  is  pro- 
vided that  no  one  shall  be  incompetent  on  account  of  his  opinions 
on  religion,  but  he  is  required  to  make  a  solemn  statement  of  the 
truth  of  his  testimony,  and  is  guilty  of  perjury  for  wilful  and  cor- 
rupt misstatement.  3  Jones  on  Evidence,  §§  732,  733;  (2)  Insane 
persons  may  testify  in  a  lucid  interval,  if  deemed  by  the  court 
capable  of  understanding  the  obligation  of  an  oath,  and  of  giving 
correct  answers.  3  Jones  on  Evidence,  §  737 ;  Coleman  v.  Common- 
wealth, 25  Gratt.  (Va.)  865;  (3)  The  evidence  of  children  will  be 
received,  if  the  witness'  mind  is  sufficiently  matured  to  understand, 
in  general,  the  meaning  of  an  oath.  3  Jones  on  Evidence,  §§  738, 
739;  (4)  Persons  convicted  of  crime,  or  having  an  interest,  are  al- 

•  It  may  be  noted  that  much  of  the  obscurity  which  pervades  the  discussion  of  the  sub- 
ject has  ari  en  from  the  use  of  the  various  names  applied  to  such  statements,  "  parol  evi- 
dent." ''extrinsic  pvidencp."  "  direct  testimony  "  and  30  on,  when  the  same  terms  are 
used  elsewhere  in  other  and  widely  different  senses. 


EVIDENCE.  235 

most  universally  allowed  to  testify,  the  circumstances  affecting  them 
being  considered  to  go  only  to  their  credibility.  3  Jones  on  Evi- 
dence, §§  743,  748. 

The  work  above  cited,  sections  730-748  has,  perhaps,  the  clear- 
est and  most  concise  treatment  of  the  subject,  and  references  to 
the  State  statutes  will  be  there  found  collected.  See  also  1  Green- 
leal  on  Evidence, '§§  327-430. 

47.  What  are  the  principal  classes  of  privileged  communica- 
tions?    May  the  "privilege"  be  waived? 

The  two  leading  classes  are  communications  between  husband 
and  wife,  and  between  attorney  and  client.  . 

1.  The  first  arises  from  the  identity  of  interest  and,  especially, 
from  the  necessity  of  preserving  the  mutual  trust  and  confidence  of 
the  conjugal  relation.     By  the  common-law  rule,  which  still  pre- 
vails in  many   States,   this  prohibition  covers  conversations  be- 
tween husband  and  wife  on  any  subject.     O'Connor  v.  Majori- 
banks,  4  Man.  &  Gr.  435;  Dexter  v.  Borth,  2  Allen,  559.    In  other 
States  it  is  limited  to  confidential  conversations.     Southwick  v. 
Southwick,  49  N.  Y.  510.    Whether  such  testimony  may  be -given 
by  a  husband  or  wife,  if  the  other  spouse  consents,  is  not  settled. 
3  Jones  on  Evidence,  §  757. 

2.  The  reason  of  protecting  conversations  and  other  communi- 
cations between  attorney  and  client  on  professional  matters    is 
leased  on  a  choice  between  two  evils.     An  occasional  failure  of  jus- 
tice is  deemed  better  than  continual  uneasiness  and  distrust  in 
conferences  between  a  client  and  his  adviser.     Foster  v.  Hall,  12 
Pick.  89;  Goddard  v.  Gardner,  28  Conn.  172.     The  privilege  is 
clearly  the  client's,  and  if  he  waives  it,  the  attorney  will  be*allowed 
to  state  what  was  said.    Foster  v.  Hall,  supra;  Chirac  v.  Reinicker, 
11  Wheat.  280,  293.     And  see  Westover  v.  Aetna,  etc.,  Co.,  99 
N.  Y.  56. 

48.  Can  a  witness  refuse  to  answer  a  question  on  the  ground 
that  it  will  tend  to  subject  him  to  pecuniary  liability? 

No.  It  has  been  finally  settled  that  the  privilege  of  refusal  ex- 
tends only  so  far  as  to  allow  a  witness  to  protect  himself  from 
criminal  prosecution  or  from  suffering  a  penalty  or  forfeiture. 
Bull  v.  Loveland,  10  Pick.  9;  Taney  v.  Kemp,  4  Harr.  &  J.  (Md.) 
348;  3  Jones  on  Evidence,  §  895. 

49.  A  witness  has  no  recollection  whatever  of  certain  facts, 
but  can  swear  positively  as  to  their  occurrence  from  their  being 
stated  in  a  memorandum  he  made  at  the  time.     May  his  testi- 
mony go  in  ? 

Yes.  He  swears  that  he  could  not  have  made  the  entry  unless 
the  fact  had  been  true.  The  evidence  is  generally  more  weighty 


236  QUESTIONS  AND  ANSWERS. 

where  the  memorandum  was  set  down  for  the  express  purpose  of 
perpetuating  the  facts.  State  v.  Rawls,  2  N.  &  McC.  (S.  C.)  331;. 
Halsey  v.  Sinsebaugh,  15  N.  Y.  485.* 

50.  How  is  the  credibility  of  a  witness  directly  attacked? 

There  are  several  methods:  (1)  A  familiar  course  is  to  call  wit- 
nesses who  are  first  asked  if  they  know  the  general  reputation  for 
truth  and  veracity  of  the  person  who  has  testified,  and  then,  what  • 
that  reputation  is.  Generally  these  witnesses  are  then  asked  whether 
they  would  believe  him  under  oath.  1  Greenleaf  on  Evidence,. 
§  461,  note  c;  3  Jones  on  Evidence,  §§  862-865.  Sometimes,  the 
question  is  whether  his  reputation  for  veracity  is  up  to  the  average 
of  mankind.  State  v.  Randolph,  24  Conn.  368. 

(2)  The  witness  may  be  impeached  by  contradicting  his  state- 
ments by  the  testimony  of  other  witnesses,  provided    those  state- 
ments are  material  to  the  issue.    In  other  words,  you  cannot  im- 
peach him  by  asking  others  about  collateral  matters  merely  for  the 
purpose  of  contradicting  him.    Lawrence  v.  Barker,  5  Wend.  301;. 
Pullen  v.  Pullen,  43  N.  J.  Eq.  136. 

(3)  A  third  method  is  by  showing  previous  statements  inconsist- 
ent with  those  made  at  the  trial.     Stephen's  Dig.  Ev.,  §  131;  Hart 
v.  Bridge  Co.,  84  X.  Y.  56;  and  on  all  three  methods  see  summary 
in  Gaines  v.  Relf,  12  How.  555. 

The  cross-examination  is,  of  course,  in  many  cases,  sufficient  in 
itself  to  discredit  the  witness  by  bringing  out  his  bias,  interest,, 
relationship,  means  of  acquiring  knowledge  of  the  facts,  and  the 
like.  , 

51.  If  your  own  witness  surprises  you  by  testifying  in  an  un- 
expected manner,  may  you  show  him  to  be  unworthy  of  cred- 
ence? 

As  a  rule,  a  party  is  not  allowed  to  discredit  his  own  witness, 
Having  introduced  him,  he  is  presumed  to  know  his  character  and, 
in  a  way,  to  vouch  for  him.  But,  in  the  case  suggested,  you  may 
ask  questions  to  recall  to  the  mind  of  the  witness  the  statements 
previously  made  to  you,  and  to  draw  out  an  explanation.  Bullard  v. 
Pearsall,  53  N".  Y.  230;  1  Greenleaf  on  Evidence,  §§  442-444:  3" 
Jones  on  Evidence,  §  859,  and  statutes  cited.  And,  of  cour«e,  the 
facts  in  issue  may  always  be  shown  by  the  evidence  of  others,  even 
though  the  credit  of  your  preceding  witness  be  impaired  therebv. 
Skellinger  v.  Howell,  8  N.  J.  Law,  310;  Olmstead  v.  Winsted  Bank, 
32  Conn.  278. 

* Tliis  species  of  testimony  should  not  be  confused  with  that  noted  in  Ques.  27.  There- 
the  memorandum  is  eviaence  in  itself  and  goes  before  the  jury,  the  oath  being  only 
to  verity  it  as  original  and  made  in  the  course  of  business.  In  the  case  here  mated, 
however,  the  oath  is  the  evidence  and  is  affected  as  to  its  credibility  by  the  character 
of  the  memorandum  connected  wtih  it.  See  note  to  Price  v.  Torriugton,  1  Smith's 
Lead.  Cas.  (8th  ed.)  572-073;  and  note,  Thuycr's  Cas.  on  Ev.  531,  532. 


INSURANCE. 


I.  GENERALLY. 

1.  Define  insurance. 

Insurance  is  "  a  contract  whereby,  for  a  stipulated  consideration, 
one  party  undertakes  to  indemnify  the  other  against  damages  or 
loso  on  a  certain  subject  by  certain  perils."  1  Phillips  on  In- 
surance (5th  ed.),  §  1. 

The  principles  relating  to  contracts  in  general  govern  also  in 
insurance,  and  unless  it  is  forbidden  by  some  statute  or  by  public 
policy,  an  individual  or  a  partnership,  as  well  as  a  companv,  may 
enter  into  such  a  contract.  May  on  Insurance  (3d  ed.),  §  35. 

II.     WARRANTY,  REPRESENTATION  AND  CONCEALMENT. 

2.  Define  a  warranty  and  a  representation  in  insurance,  and 
state  tlie  effect  of  the  falsity  or  violation  of  each. 

A  warranty  is  a  statement  or  stipulation,  inserted  or  referred  to 
in  and  made  a  part  of  the  policy,  upon  the  truth  or  performance  of 
which,  on  the  part  of  the  insured,  the  validity  of  the  contract 
depends. 

A  representation  is  not  a  part  of  the  policy,  but  is  an  incidental 
statement  or  representation  made  by  the  insured,  upon  the  faith  of 
which  the  policy  is  issued.  Daniels  v.  Hudson,  etc.,  Ins.  Co.,  12 
Cush.  (Mass.)  416. 

The  falsity  or  violation  of  a  warranty  is  fatal.  The  statements 
must  be  literal^  true  and  the  stipulations  fully  observed,  or  the 
policy  is  void,  and  the  insured  cannot  recover  by  showing  that  the 
warranty  was  immaterial,  or  that  the  breach  of  it  in  no  way  con- 
tributed to  the  loss,  or  that  the  false  statement  was  made  through 
mistake.  Glade  v.  Ins.  Co.,  56  Iowa,  400. 

The  falsity  or  violation  of  a  representation  is  only  fatal  when 
the  falsity  is  in  regard  to  facts  material  to  the  risk,  and  even  then 
it  need  only  be  substantially  true.  Horn  v.  Ins.  Co.,  64  Barb.  (N. 
Y.)  81;  Am.  &  Eng.  Ency.  of  Law  (1st  ed.),  "  Insurance," '290-296. 

3.  A.,  when  applying  for  a  policy  on  his  building,  represents 
that  it  is  used  for  storing  hardware,  which    is  true.      Before 
the  policy  is  issued  he  uses  it  for  storing  oil,  hut  is  asked  no  fur- 
ther question  as  to  the  use  of  the  building.      Is  the  policy  which 
is  afterwards  issued  binding? 

No.  The  representation  is  deemed  to  be  made  at  the  time  the 
•contract  is  consummated,  and  must  be  true  at  that  time.  Ins.  Co. 


238  QUESTIONS  AND  ANSWERS. 

v.  Ewing,  92  U.  S.  377.  When  the  contract  is  consummated,  how- 
ever, no  subsequent  change  of  the  facts  represented  renders  the 
policy  void.  In  the  absence  of  actual  stipulation  to  that  effect, 
there  is  no  representation  that  the  building  will  continue  to  be  so- 
occupied.  Frisbee  v.  Ins.  Co.,  27  Penn.  St.  325;  Blood  v.  Howard 
Ins.  Co.,  12  Cush.  472. 

4.  A.  makes  a  written  application  for  an  insurance  policy , 
and  makes  certain  false  oral  representations  at  the  same  time. 
Can  he  recover  for  a  loss  of  the  properly? 

Yes.  When  the  application  is  made  in  writing  it  is  presumed 
that  all  representations  are  incorporated  in  the  application,  and 
those  made  orally  cannot  be  shown.  Ins.  Co.  v.  Howry,  96  U.  S. 
544. 

5.  Define  concealment  in  the  law  of  insurance,  and  state  its 
effect. 

Concealment  is  the  intentional  withholding,  by  the  insured  from 
the  insurers,  of  facts  material  and  prejudicial  to  the  risk,  which 
ought  in  good  faith  to  be  made  known.  The  facts  must  be 
known  to  the  insured  to  make  the  concealment  intentional.  Boggs 
v.  American  Ins.  Co.,  30  Mo.  63.  And  it  has  been  held  that  even 
when  known,  an  innocent  failure  to  communicate  facts  as  to  which 
the  applicant  is  not  questioned  will  not  avoid  the  policy.  Wash- 
ington, etc.,  Co.  v.  Ins.  Co.,  135  Mass.  503;  Buck  v.  Ins.  Co.,  76  Me. 
586. 

The  withholding  of  facts  actually  known  avoids  the  policy,  but 
whether  or  not  the  insured  has  such  knowledge  is  a  question  for 
the  jury  (Houghton  v.  Ins.  Co.,  8  Mete.  [Mass.]  114);  but  he  must 
be  presumed  to  have  such  knowledge  as  a  reasonable  man  ought  to 
have  under  the  circumstances.  Dennison  v.  Ins.  Co.,  20  He.  125. 

6.  A.'s  policy  called  for  the  payment  of  premiums  in  install- 
ments, the  policy  to  be  suspended  if  payment  was  not  made. 
One  payment  was  due  January  1st.      On  that  day  A.  was  seri- 
ously ill  and  unable  to  make  payment.      Loss  occurred  on  Jan- 
uary 2d.  '  Would  his  nonpayment  be  excused? 

No.  Physical  inability  of  the  insured  is  not  an  excuse  for  fail- 
ure to  pay  the  premium  when  due,  and  the  policy  would  be  void. 
Evans  v.  Ins.  Co.,  64  1ST.  Y.  304;  Carpenter  v.  Centennial,  etc., 
Assn.,  68  Iowa,  453. 

Nor  is  the  insured  excused  for  nonpayment  if  the  company  is- 
enjoined  from  doing  business  pending  an  examination  of  its  condi- 
tion. Universal  L.  Ins.  Co.  v.  Whitehead,  10  Ins.  L.  J.  337.  See 
Coffey  v.  Universal  Ins.  Co.,  id.  525. 

But  where  the  company  has  failed  or  the  receiver  has  given  no- 


INSURANCE.  239 

tice  he  will  not  receive  any  more  premiums,  or  has  declared  the 
policy  forfeited,  or  the  company  has  changed  its  agent,  and  the 
premium  has  been  paid  to  the  former  agent,  of  which  fact  the 
company  has  notice  but  makes  no  report  to  the  insured,  who  acted 
in  good  faith,  the  nonpayment  is  excused  and  the  policy  may  be 
enforced.  Atty.-Gen.  v.  Guardian,  etc.,  Ins.  Co.,  82  N.  Y.  336; 
So.  L.  Ins.  Co.  v.  McCain,  96  U.  S.  84. 

7.  Payment  upon  A.'s  policy  became  due  and  he  was  allowed 
an  additional  week  to  make  same  during  which  time  and  before 
payment  was  made  the  loss  occurred.    Could  the  company  be  held 
if  the  policy  provided  that  nonpayment  should  avoid  the  policy? 

The  company  could  be  held.  Provisions  as  to  the  payment  of  the 
premium  may  be  waived  after  the  policy  takes  effect,  by  parol  as 
well  as  in  writing,  and  any  act  of  the  company  which  would  reason- 
ably imply  that  the  company  did  not  mean  to  insist  upgn  an  ab- 
solute performance  would  be  a  waiver.  Alexander  v.  Continental 
Ins.  Co..  GT  Wis.  422;  Union,  etc.,  Ins.  Co.  v.  Pottker,  33  Ohio  St. 
459;  Lyon  v.  Travelers'  Co.,  55  Mich.  141. 

III.    INSUEABLE  INTEREST. 

8.  A.  takes  out  a  policy  of  insurance  upon  a  house  in  which 
fie  has  no  interest.      He  pays  the  premium  in  a  note.      Can  it 
be  collected?    Suppose  loss  occurs  after  the  note  is  collected? 

If  the  insured  has  no  pecuniary  interest  in  the  house  the  policy 
is  a  mere  wagering  contract  and  void,  even  if  the  policy  make  no 
provision  for  such  a  case.  Notes  given  for  the  payment  of  pre- 
miums on  such  a  policy  are,  therefore,  not  enforceable,  for  lack 
of  consideration,  and  no  action  can  be  maintained  for  loss,  even  if 
premiums  are  paid.  Sweeney  v.  Ins.  Co.,  20  Penn.  St.  337;  Free- 
man v.  Ins.  Co.,  38  Barb.  (N.  Y.)  247.  But  see  Ins.  Co.  v.  Johnson, 
24  X.  J.  Law,  576.  The  interest  must  exist  at  the  commencement  of 
the  policy;  it  need  not  exist  at  the  time  of  suit.  Mowry  v.  Ins.  Co., 
9  R.  I.  346. 

9.  What  constitutes  an  insurable  interest  in  property? 

If  the  insured  would  suffer  pecuniary  injury  from  the  loss  of 
the  property,  his  interest  is  an  insurable  one.  There  need  not 
be  a  legal  title  to  the  property.  Rohrbach  v.  Ins.  Co.,  62 
N".  Y.  47;  Merrett  v.  Ins.  Co.,  42  Iowa,  11.  Thus,  an  equitable  in- 
terest may  be  insured.  Higginson  v.  Ball,  13  Mass.  94. 

A  vendor,  who  has  contracted  to  sell,  or  a  vendee  in  possession, 
mar  insure  his  interest.  MacCutcheon  v.  Ingrahpm  (W.  Vn.).  9 
S.  E.  Rep.  260;  Rumsey  v.  Phoenix  Ins.  Co.,  17  Blatchf.  (U.  S.) 
527,  529. 


240  QUESTIONS  AND  ANSWERS. 

So,  also,,  an  insurable  interest  is  held  by  a  lessor  or  lessee,  a  mort- 
gagor or  mortgagee,  a  holder  of  a  lien  upon  property  by  statute  or 
common  law,  an  assignor,  assignee,  executor,  administrator,  trustee 
for  the  use  of  the  cestui  que  trust,  and  others  having  similar  in- 
terests in  property.  An  agent  or  consignee  who  is  interested  in 
the- property  only  to  the  amount  of  his  commission  may  also  insure 
it  in  his  own  name  and  recover  the  entire  amount  of  the  policy, 
holding  all  beyond  his  own  interest  in  trust  for  his  principal.  Aetna 
Ins.  Co.  v.  Jackson,  16  B.  Mon.  (Ky.)  242;  Williams  v.  Ins.  Co.,  15 
La.  Ann.  651.  And  similarly  a  common  carrier,  or  any  person  re- 
sponsible for  goods  in  his  custody,  has  an  insurable  interest  to  the 
extent  of  his  liability.  The  Sidney,  23  Fed.  Rep.  88,  92.  A 
builder,  who  is  not  to  be  paid  until  the  building  is  completed,  has 
an  insurable  interest  in  the  property.  Franklin,  etc.,  Ins.  Co.  v. 
Coates,  14  Md.  285,  295. 

"A  contract  of  life  insurance  is  not  necessarily  one  merely  of  in- 
demnity for  a  pecuniary  loss,  as  in  marine  and  fire  policies.  It  is 
sufficient'to  show  that  the  policy  is  not  invalid  as  a  wager  policy,  if 
it  appears  that  the  relation,  whether  of  consanguinity  or  of  affinity, 
was  such,  between  the  person  whose  life  was  insured'  and  the  benefi- 
ciary named  in  the  policy,  as  warrants  the  conclusion  that  the 
beneficiary  had  an  interest,  whether  pecuniar}'  or  arising  from 
dependence  or  natural  affection,  in  the  life  of  the  person  insured." 
Ins.  Co.  v.  Bailey,  13  Wall.  (U.  S.)  619;  Rawls  v.  Ins.  Co.,  27  N.  Y. 
282,  289.  But  any  person  may  insure  his  ozc1;/  life  for  the  benefit 
even  of  a  stranger.  Johnson  v..Van  Epps,  110  111.  551.  And  it 
seems  that  the  policy  is  good  even  if  the  premiums  are  paid  by  the 
other  party.  Aetna  Life  Ins.  Co.  v.  France,  94  U.  S.  561;  St.  John 
v.  Ins.  Co.,  13  N.  Y.  31  40;  Hoyt  v.  Ins.  Co.,  3  Bosw.  (X.  Y.)  440, 
446. 

Any  person  who  is  dependent  upon  another  for  support  has  a 
sufficient  interest  in  his  life  to  support  a  policy,  and  the  re- 
lation of  husband  and  wife  gives  each  an  insurable  interest  in. the 
life  of  the  other.  Currier  v.  Ins.  Co.,  57  Vt.  496,  500.  Thus 
where  a  married  woman  insured  her  husband's  life  and  afterwards 
obtained  a  divorce  from  him  the  insurance  company  cannot  cancel 
the  policy  on  the  ground  that  the  woman  no  longer  has  an  insur- 
able interest  in  his  life.  He  is  still  under  a  natural  obligation  to 
support  any  children,  and  alimony  awarded  the  wife  would  make 
her  in  effect  his  creditor.  '  McKee  v.  Ins.  Co.,  28  Mo.  383. 

It  has  also  been  held  that  the  relation  of  parent  and  child  is 
sufficient  alone  to  establish  an  interest  insurable  by  either.  Grat- 
tan  v.  Ins.  Co.,  15  Hun  (N.  Y.),  74,  76;  Reserve,  etc.,  Co.  v.  Kane, 
81  Penn.  St.  154;  Loomis  v.  Ins.  Co.,  6  Gray  (Mass.),  396,  402.  In 
the  last  case  this  position  is  defended  "  not  merely  because  they 
are  bound  to  support  their  lineal  kindred  when  in  need  of  relief, 
but  upon  considerations  of  strong  morals  and  the  force  of  natural 
affection  between  near  kindred,  operating  more  efficaciously  than 
those  of  positive  law,"  p.  399. 


INSURANCE.  241 

This  principle  has  been  denied,  however.  Guardian,  etc.,  Ins. 
•Co.  v.  Hogan,  80  111.  35.  And  certainly  no  other  relationship  will, 
per  sc,  raise  an  in-surable  interest  —  as  that  of  a  son-in-law  (Rom- 
bach  v.  Ins.  Co.,  35  La.  Ann.  233);  or  a  nephew.  Singleton  v. 
Ins.  Co.,  66  Mo.  63.  Employers  and  employees  have  an  insurable 
interest  in  the  lives  of  each  other,  and  a  creditor  may  in- 
sure his  debtor's  life.  Miller  v.  Ins.  Co.,  2  E.  D.  Smith  (N.  Y.), 
268;  Hoyt  v.  Ins.  Co.,  3  Bosw.  (N.  Y.)  440. 

10.  A.  has  an  insurable  interest  in  the  life  of  B.  and  takes 
cut  a  policy  upon  it.     He  then  assigns  the  policy  to  X.,  who  has 
no  such  interest.     Can  the  policy  be  enforced? 

No.  The  assignee  as  well  as  the  man  originally  insured  must 
have  an  insurable  interest.  Ins.,  etc.,  Co.  v.  Sturges,  18  Kan.  93; 
Franklin  Ins.  Co.  v.  Sefton,  53  Ind.  380. 

IV.    INSURANCE  AGENTS. 

11.  What  are  the  powers  of  insurance  agents? 

In  insurance  as  well  as  other  branches  of  business  the  general 
rules  of  agency  apply,  and  insurance  agents  have  such  powers  as 
they  are  held  out  by  the  company  as  exercising.  Travelers  Ins. 
Co.  v.  Edwards,  122  U.  S.  457;  Hamilton  v.  Home  Ins.  Co.,  94 
Mo.  353. 

The  provisions  of  the  policy,  however,  limiting  the  authority 
of  the  agent,  are  in  most  jurisdictions  binding.  Brown  v.  Mass., 
•etc.,  Ins.  Co.,  59  X.  H.  298;  Gladding  v.  Ins!  Co., 66  Cal.  6;  Leonard 
v.  Ins.  Co.,  9?  Ind.  299;  Shawmut,  etc.,  Ins.  Co.  v.  Stevens,  9  Allen 
(Mass.),  332. 

Some  cases,  however,  are  contrary.  See  Haight  v.  Ins.  Co.,  92 
N.  Y.  51;  Carson  v.  Ins.  Co.,  39  Am.  Rep.  584;  s.  c.,  14 
Vroom  (X.  J.),  300.  There  are  also  similar  decisions  in  Iowa,  Con- 
necticut, Tennessee,  Wisconsin  and  Indiana. 

12.  An  agent,  in  soliciting  business,  himself   filled  out    his 
client's  application  for  a  policy,  and  inserted  in  it  representa- 
tions which  he  knew  were  false.     The  infitred  signed  the  appli- 
cation, not  knowing  the  representations  it  contained,  and  igno- 
rant of  any  limitation  of  the  agent's  authority.     Can  he  deny 
that  he  is  bound  by  the  representations? 

The  rule  that  a  written  contract  cannot  be  varied  by  parol  evi- 
dence will  not,  in  most  jurisdictions,  prevent  the  insured  from 
showing  that  the  application  was  made  out  by  the  agent,  and  in 
such  a  case  the  policy  could  be  enforced.  The  manner  in  which 
the  insurance  business  is  actually  conducted  has  been  considered 
by  the  courts,  and  they  have  refused  to  shut  their  eyes  to  the 
fact  that  the  companies  pay  their  agents  large  commissions  upon 
16 


242  QUESTIONS  AND  ANSWERS. 

the  premiums  collected  and  that  in  making  out  applications  the 
agents  are  acting  for  the  companies  and  not  for  the  applicant. 
The  best  view  is  that  the  companies  in  such  cases  are  held  just  as 
the  agents  would  be  if  they  were  underwriters  on  the  policy.  The 
Union,  etc.,  Co.  v.  Wilkinson,  13  Wall.  (U.  S.)  222. 

The  courts  of  Massachusetts  and  of  several  other  States,  how* 
ever,  are  "  contra ",  on  the  ground  that  to  receive  evidence- 
that  a  statement  is  not  that  of  the  person  who  signed,  would  vio- 
late the  rules  of  evidence  as-  to  written  contracts.  Brown  v.  Ins, 
Co.,  59  N.  H.  298,  301',  McCoy  v.  Ins.  Co.,  133  Mass.  82;  Smith  v. 
Ins.  Co.,  24  Penn.  St.  320,  324;  Ins.  Co.  v.  Martin,  8  Ins.  L.  J. 
(N.  J.),  134, 140,  and  cases  there  cited. 

These  cases  seem  well  criticised,  however,  in  The  Union,  etc., 
Co.  v.  Wilkinson,  snpra,  on  the  ground  that  they  make  the  rule 
of  evidence  "  the  instrument  of  the  very  fraud  it  was  intended 
to  prevent." 

In  N.  Y.  Life  Ins.  Co.  v.  Fletcher,  117  U.  S.  519,  the  assured 
and  the  insurer  were  both  innocent  (the  application  was  signed  by 
the  assured)  and  it  was  held  the  policy  should  be  canceled  and  the 
premiums  returned. 

Where  inaccuracies  in  the  representations  of  the  applicant 
are  known  by  a  general  agent,  either  before  or  after  the  execution 
of  the  policy,  it  is  good  notice  to  the  company,  and  where  the 
agent  acts  with  such  knowledge  the  defense  which  the  company 
would  otherwise  have  to  an  action  on  the  policy  is  waived.  Hamil- 
ton v.  Home  Ins.  Co.,  94  Mo.  353.  Contra,  Ins.  Co.  v.  Martin,  8 
Ins.  L.  J.  134;  s.  c.,  40, X.  J.  Law,  568;  McCoy  v.  Ins.  Co.,  supra; 
Smith  v.  Ins.  Co.,  supra. 

But  in  the  case  of  a  special  agent  it  is  always  a  question  as  to 
the  scope  of  his  authority,  and  notice  to  him  would  not  be  sufficient 
if  a  waiver  of  any  of  the  rights  of  the  company  was  beyond  hi& 
power.  Devens  v.  Ins.  Co.,  83  N.  Y.  168. 

An  agent,  of  course,  binds  his  company  by  representations  made 
within  the  general  scope  of  his  authority,  unless  the  insured 
knows  that  the  agent  is  exceeding  his  powers,  and  also,  with  the 
same  limitation,  by  his  mistakes  or  express  waivers.  New  Eng., 
etc.,  Ins.  Co.  v.  Schettler,  38  111.  166,  171;  Silverberg  v.  Ins.  Co., 
67  Cal.  36,  41;  Gladding  v.  Ins.  Co.,  66  id.  6,  8. 

13.  A  policy  contains  a  clause  to  the  effect  that  the  person  who 
procures  the  insurance  shall  be  deemed  the  agent  of  the  insured 
and  not  of  the  company.  Can  an  agent,  so  acting,  hind  the  com- 
pany by  iraivers  or  representations? 

Yes.  The  facts  cannot  be  changed  by  such  a  stipulation,  and 
where  a  duly  appointed  agent  acts  in  behalf  of  the  company  it  is 
bound  if  he  is  within  the  scope  of  his  authority.  Putnam  v.  In?. 
Co.,  18  Blatchf.  (U.  S.)  368;  Deitz  v.  Ins.  Co.  (W.  Va.),  8  S.  E. 
Eep.  616;  Carson  v.  JUs.  (.V.  43  N.  ?.  Law,  300;  s.  c.,  39  Am.  Rep. 


INSURANCE.  243  . 

584.    Contra,  Brown  v.  Ins.  Co.,  59  ft".  H.  298;  Shawmut,  etc.,  Co. 
v.  Stevens,  9  Allen  (Mass.),  332;  Gladding  v.  Ins.  Co.,  66  Cal.  6. 

14.  A  policy  provides  that  no  condition  thereof  shall  be 
waived,  except  upon  the  indorsed  consent  of  the  company.  An 
agent.,  in  violation  of  one  of  the  conditions  of  the  policy,  writes 
insurance  on  a  vacant  house  and  forwards  the  premium  to  the 
company,  who  retains  the  same.  Can  the  insured  recover  on  . 
the  policy? 

Yes.  In  spite  of  the  provision  as  to  a  waiver,  the  condition 
would  be  waived.  Haight  v.  Ins.  Co.,  92  ft.  Y.  51.  And  such  a 
provision  in  general,  will  not  protect  a  company  if  an  agent, 
otherwise  competent,  has  waived  any  of  the  conditions.  Carson  v. 
Ins.  Co.  (ft".  J.),  39  Am.  Bep.  584;  American,  etc.,  Ins.  Co.  v. 
McCrea  (Tenn.),  41  id.  647;  Ind.  Ins.  Co.  v.  Capehart,  108  Ind.  270; 
M.  I.  F.  Ins.  Co.  v  Gusdorf,  43  Md.  506. 

A  provision  of  this  sort  has  even  been  held  to  be  invalid  and 
without  force,  whether  waiver  or  not,  on  the  ground  that  it  was 
not  a  limitation  on  the  authority  of  any  particular  agent  or  class 
of  agents  but  upon  the  capacity  of  the  corporation  for  future  ac- 
tion. Lamberton  v.  Ins.  Co.  (Minn.),  39  ft".  W.  Rep.  76;  Bartlett 
v.  Ins.  Co.  (Iowa),  41  id.  601.  And  there  are  many  authorities 
to  the  effect  that  such  a  provision  as  to  a  waiver  may  itself  be 
waived.  Carr  v.  Ins.  Co.,  60  ft".  H.  513. 

V.   REINSURANCE. 

15.  What  is  reinsurance  and  what  is  the  liability  of  the  re- 
insurer? 

Reinsurance  is  where  the  first  insurer  reinsures  the  risk  in 
another  company.  It  is  a  contract  entered  into  merely  for  the 
protection  of  the  first  company,  and  the  insured  has  no  rights  in 
the  matter  whatever.  Lee  v.  Ins.  Co.,  1  Hardy  (Ohio),  217,  231; 
Strong  v.  Ins.  Co.,  62  Mo.  289,  299. 

The  liability  of  the  reinsurer  is  the  same  as  that  of  the  original 
insurer,  and  if  the  policy  is  void  as  against  the  insurlr  it  will  also  be 
void  as  against  the  reinsurer,  ft".  Y.  etc.,  Ins.  Co.  v.  Ins.  Co.,  1 
Story  (U.  S.),  458.  And  to  recover  against  the  reinsuring  com- 
pany, the  first  company  must  make  such  proof  as  the  insured  is 
required  to  make.  Yonkers,  etc.,  Ins.  Co.  v.  Hoffman  Ins.  Co.,  6 
Rob.  (X.  Y.)  316,  320. 

It  has  been  held,  however,  in  New  York,  that  furnishing  the 
r/roofs  of  the  original  insured  is  sufficient,  (Bowery  F.  Ins.  Co.  v. 
Ins.  Co.,  17  Wend.  359):  and  in  Jackson  v."  Ins.  Co..  99 
ft".  Y.  124,  130,  it  was  held  that  the  reinsuring  company  could  not 
defend  an  acti.  n  on  account  of  a  misrepresentation  made  in  ob- 
taining the  original  policy. 


244  QUESTIONS  AND  ANSWERS. 

This  is  certainly  true  where  a  judgment  has  been  recovered 
against  the  first  company  in  an  action  which  the  reinsuring  com- 
pany was  notified  to  defend.  Strong  v.  Ins.  Co.,  4  Mo.  App.  7. 

In  applying  for  reinsurance  the  original  company  must,  of 
course,  make  known  any  facts  within  its  knowledge  which  are 
material  to  the  risk,  and  in  all  ways  comply  with  the  requirements 
laid  upon  any  applicant. 

VI.     REMEDIES. 

16.  The  terms  of  a  contract  of  insurance  have  been  fully  set- 
tled, but  the  policy  has  not  been  issued.    Has  the  insured  any 
rights  if  a  loss  occurs? 

Yes.  He  may  recover  upon  the  policy.  Sheldon  v.  Ins.  Co.,  25 
Conn.  207;  Humphrey  v.  Ins.  Co.,  15  Blatchf.  (U.  S.)  35,  504. 
There  must  be  conclusive  evidence,  however,  that  the  contract  was 
actually  made.  Suydam  v.  Ins.  Co.,  18  Ohio  St.  459. 

17.  A  policy  has  been  issued  which,' by  mutual  mistake,  does 
not  conform  to  the  real  agreement  of  the  parties.     Would  the  in- 
sured have  any  right  in  case  of  loss? 

Yes.  Such  a  policy  may  be  reformed  in  equity,  even  after  loss  has 
occurred,  and  damages  will  be  decreed  in  the  same  case.  Hammel 
v.  Ins.  Co.,  50  Wis.  240;  Phoenix  Ins.  Co.  v.  Hoffheimer,  46  Miss. 
645.  Such  a  mistake,  however,  must  be  proved  conclusively,  and 
must  be  mutual  or  induced  by  the  fraud  of  one  of  the  parties, 
fcnell  v.  Ins.  Co.,  98  U.  S.  85. 

Where, -by  fraud  or  mistake,  a  policy  has  been  issued  injurious 
to  the  company,  it  also  may  obtain  a  decree  in  equity,  requiring  a 
redelivery  and  cancellation  of  the  policy;  Imperial  Ins.  Co.  v. 
Gunning,  81  111.  236;  and  that,  too,  even  after  an  assignment  of  the 
policy  for  value,  without  notice.  British  Eq.  Assur.  Co.  v.  Great 
W.  Ey.  Co.,  20  L.  T.  (N.  S.)  (L.  R.)  422. 

After  a  loss,  however,  the  proper  course  for  the  company  is  to  de- 
fend the  action  upon  the  policy.  Phoenix  Ins.  Co.  v.  Bailey,  13 
Wall.  (U.  S.)  616; 

18.  A  company  is  required  by  law  to  keep  on  hand  $50,000 
for  the  payment  of  losses.      The  company  does  not  comply  with 
the  requirement,  and  is  practically  insolvent.     What  is  its  lia- 
bility? 

In  such  a  case  the  company  is  liable  to  every  policy-holder  for  a 
breach  of  its  duty,  and  the  damages  for  such  a  breach  would  be  the 
value  of  the  policy,  according  to  the  insurance  tables,  showing  the 
average  expectancy  of  life.  People  v.  Ins.  Co.,  78  X.  Y.  114. 


INSURANCE.  24o 

19.  A.,  intending  to  commit  suicide,  insures  his  life  in  his 
wife's  favor  before  doing  so.      Could  the  company  defend  an 
action  by  the  wife?     Suppose  the  wife  killed  her  husband  to  get 
the  insurance? 

Where  the  policy  is  negotiated  with  the  intent  to  commit  suicide, 
it  cannot  be  enforced,  any  more  than  where  a  man  burns  his  prop- 
erty. And  this  would  be  the  result,  even  though  there  was  no 
stipulation  for  the  avoidance  of  the  policy  by  suicide.  Smith  v. 
Xat.  Ben.  Assn.,  4  X.  Y.  Supp.  521. 

In  the  second  case,  the  wife,  being  no  party  to  the  contract, 
cannot  be  said  to  violate  any  condition  of  the  policy,  express  or 
implied,  but  public  policv  would  prevent  her  from  recovering.  X. 
•  Y.,  etc.,  Co.  v.  Armstrong,  117  U.  S.  591. 

20.  A  fire  insurance  policy  contains  a  clause  giving  the  com- 
pany the  right  to  cancel  the  policy  at  any  time.   Is  such  a  clause 
enforceable  ? 

If  loss  is  imminent  cancellation  is  not  allowed,  but  in  other  cases 
such  a  clause  is  binding  upon  the  insured.  The  company  must, 
of  course,  return  the  unearned  proportion  of  the  premium.  Home 
Ins.  Co.  v.  Heck,  65  111.  111.  Xotice,  without  a  return  or  offer 
to  return  the  unearned"  premiums,  amounts  to  nothing.  Hathorn 
v.  Germania  Ins.  Co.,  55  Barb.  (N .  Y.)  28". 

21.  Can  an   insurance  company  enforce  a   provision  which 
limits  the  time  within  which  an  action  upon  its  policy  must  be 
brought?      Suppose  the  time  is  less  than  that  allowed  by  the 
Statute  of  Limitations? 

Such  a  provision  can  be  enforced,  regardless  of  the  Statute  of 
Limitations,  and  the  expiration  of  the  time  fixed  by  it  is  an  absolute 
bar,  unless  the  time  is  so  short  as  to  raise  the  presumption  of  fraud. 
Six  months  after  cause  of  action  arose  has  been  held  a  reasonable 
limitation.  Brown  v.  Ins.  Co.,  24  Ga.  97,  101.  So,  also,  one  year 
after  date  of  fire.  Thompson  v.  Phoenix  Ins.  Co.,  25  Fed.  Rep. 
296. 

And  when  such  a  stipulation  is  set  up,  the  insured  is  barred,  even 
if  he  shows  that  in  an  action  actually  begun  within  the  time  speci- 
fied he  has  been  nonsuited,  or  that  such  an  action  has  been  discon- 
tinued or  a  judgment  therein  stayed.  Brown  v.  Ins.  Co.,  7  R.  I. 
301;  Arthur  v.  Ins.  Co.,  78  N.  Y.  462. 

There  may,  however,  be  a  good  excuse  for  not  bringing  suit 
within  the  specified  time,  as  when  war  breaks  out  and  prevents; 
Semmes  v.  Ins.  Co.,  13  Wall.  (U.  S.)  159;  or  where  the  performance 
in  good  faith  of  conditions  precedent  to  payment  takes  more  time 
than  that  allowed;  Longhurst  v.  Ins.  Co.,  19  Iowa,  364,  370;  or 
where  the  delay  is  owing  to  the  fault  of  the  company.  Day  v.  Ins. 
Co.  (Me.),  16  Atl.  Eep.  894. 


246  QUESTIONS  AND  ANSWERS. 

The  companies  also  have  the  power  to  provide  that  no  suit  shall 
be  brought  until  the  expiration  of  a  certain  time  after  loss.  John- 
eon  v.  Ins.  Co.,  91  111.  92. 

Where,  however,  there  is  an  express  denial  of  liability,  it  has  been 
held,  even  under  such  a  provision,  that  suit  may  be  brought  at 
once.  Aetna  Ins.  Co.  v.  Maguire,  51  111.  342.  But  see  Hatton  v. 
Ins.  Co.,  ?  U.  C.  C.  P.  555,  contra.  See  also  Contracts,  Question  40. 

22.  A  policy  contains  a  stipulation  that  in  case  of  the  failure 
of  the  parties  to  agree  upon  an  adjustment,  the  matters  in  dis- 
pute shall  be  arbitrated.  Is  the  stipulation  binding? 

No.  In  spite  of  such  a  stipulation,  suit  may  be  brought  in  the 
courts.  Parties  cannot  thus  substitute  another  tribunal  for  those 
which  the  law  has  established,  or  deprive  the  courts,  so  established, 
of  their  jurisdiction.  Stephenson  v.  Ins.  Co.,  54  Me.  55,  70;  Ger- 
man-American Ins.  Co.  v.  Etherton  (Xeb.),  41  N.  W.  Eep.  406; 
Eobinson  v.  Ins.  Co.,  17  Me.  131. 

Where,  however,  the  act  incorporating  the  company  contains  a 
provision  in  regard  to  enforcing  a  claim  against  the  company, 
such  a  provision  will  be  recognized.  Thus,  a  stipulation  in  a 
charter,  that  execution  shall  only  be  levied  after  a  specified  time, 
has  been  held  to  be  binding.  Judkins  v.  Tns.  Co.,  39  N.  H.  172. 

Of  course,  where  the  provisions  of  the  policy  are  simply  for  the 
reference  of  special  matters  and  do  not  divest  the  courts  of  jurisdic- 
tion, but  simply  raise  a  condition  precedent  to  the  insured's  right 
to  recover,  they  will  be  enforced  like  any  conditions  precedent. 
Scottish,  etc.,  Ins.  Co.  v.  Clancy  (Tex.),  8  S.  W.  Eep.  630.  And 
even  where  the  stipulation  could  not  originally  be  enforced,  it  is 
binding,  if  it  is  ratified  or  entered  into  by  the  parties,  after  loss. 
Kill  v.  Hollister,  1  Wilson,  129. 


PARTNERSHIP*. 


I.     THE  CREATION  OF  A  PARTNERSHIP. 
1.  How  does  a  partnership  differ  from  a  corporation? 

There  are  three  conspicuous  differences: 

1.  In  a  partnership  the  'delectus  personalis  is  the  important  con- 
sideration.    A  partner  is  chosen  for  his  personal  qualifications,  and 
his  interest  is  not  transferable,  except  by  consent  of  all  the  other 
partners.     So  also,  if  a  partner  dies,  the  firm  must  be  wound  up. 
Brenner  v.  Hirsche  (Miss.),  13- So.  Kep.  730. 

In  a  corporation  the  condition  is  quite  the  reverse.  Shares  are 
transferable,  and  the  death  of  a  shareholder  has  no  effect  unon 
the  corporation. 

2.  In  a  partnership  any  partner  has  the  legal  power  to  act  for  the 
others,  and,  wifliin  the  scope  of  the  business,  to  absolutely  bind 
them  by  his  action. 

In  a  corporation,  no  shareholder  has  any  power  to  bind  the  others. 
The  whole  authority  rests  with  the  board  of  directors. 

3.  In  a  partnership,  each  partner  is  liable  for  all  of  the  firm  debts. 
In  a  corporation  the  liability  of  the  stockholder,  *  aside  from 

statute,  is  only  to  pay  money  up  to  the  par  value  of  the  stock  sub- 
scribed for,  and  to  this  feature  the  growth  of  corporations  in 
the  past  few  years  is  largely  due.  Many  partnerships  have  been  in- 
corporated with  practically  no  other  change.  Cf.  Corporations, 
Ques.  2. 

2.  Does  a  participation  in  the  profits  of  a  firm  make  a  man 
a  partner?  How  has  the  law  on  this  point  developed? 

The  principle  was  stated  in  1793,  and  survived  for  years,  that  a 
man  who  shares  in  the  profits  is  a  partner,  and  must  share  the 
losses,  regardless  of  the  real  intention  of  the  parties.  This  was 
made  the  sole  test.  Waugh  v.  Carver,  2  H.  Black.  235.  It  was 
there  argued  that  by  taking  a  part  of  the  profits  a  man  took  part 
of  that  fund  which  is  the  proper  security  of  the  creditors.  This 
principle  produced  the  anomalous  result  of  holding  even  a  clerk  a 
partner,  if  his  salary  depended  upon  the  profits. 

In  1808  the  idea  was  somewhat  refined  by  holding  that  a  man 
was  a  partner  if  he  shared  in  the  net  profits,  but  not  if  he  shared  in 
the  gross  profits.  Day  v.  Boswell,  1  Camp.  329  (1808). 

•24: 


248  QUESTIONS  AND  ANSWERS. 

This  whole  principle  was  finally  repudiated,  however,  when  it 
was  seen  how  extreme  the  results  were.  In  Cox  v.  Hickman,  8  H. 
of  L.  Caa.  268,  decided  in  1860,  a  receiver  for  the  benefit  of  cred- 
itors entered  into  an  agreement  with  all  the  creditors  by  which 
they  were  to  be  paid  pro  rata  from  whatever  profits  were  made. 
The  effort  to  hold  ail  the  creditors  as  partners  resulted  in  the  final 
overthrow  of  AVaugh  v.  Carver.  In  Bullen  v.  Sharp,  L. 
R.  1  C.  P.  86,  again,  Bramwell,  B.,  says  on  p.  128, 
referring  to  AVaugh  v.  Carver,  "  The  Chief  Justice  *  *  * 
puts  his  decision  on  the  ground  that '  he  who  takes  a  moiety  of  all 
the  profits  indefinitely,  shall,  by  operation  of  law,  be  liable  to  losses/ 
Let  us  hope  that  this  notion  is  overruled, —  one  which  I  believe  has 
caused  more  injustice  and  mischief  than  any  bad  law  in  our  books." 

By  these  cases  the  result  was  reached  in  England,  that  where 
a  man  loaned  money  to  a  firm  and  was  to  be  paid  from  the  profits, 
he  was  in  no  sense  a  partner  and  so  in  case  of  insolvency  couM 
come  in  with  firm  creditors  in  competition  for  the  firm  assets. 
The  court  saw  no  middle  ground  between  holding  him  liable  for 
losses  as  a  partner,  and  allowing  him  to  prove  as  a  creditor.  It 
seemed  unjust,  however,  that  he  should  compete  with  firm  creditors 
for  money  which  had  been  used  to  raise  the  credit  of  the  firm,  and 
the  statute  of  28  and  29  Vic.,  chap.  86,  §  1,  known  as  Bovill's  Act, 
was  passed  and  provided  that  the  lender  under  such  circumstances 
was  a  postponed  creditor  and  could  only  get  hi,s  money  after  other 
creditors  were  paid.  This  is  certainly  the  right  result  and  is 
reached  in  the  proper  way. 

In  a  number  of  the  States,  the  principle  of  Cox  v.  Hickman  has 
been  followed  and  a  lender  is  not  held  as  a  partner  whether  he  re- 
ceives a  proportion  of  the  profits  or  not.  Boston  Smelting  Co.  v. 
Smith.  13  R.  I.  27;  Smith  v.  Knight,  71  111.  148;  Williams  v.  Saut- 
ter, 7  Iowa,  435;  Harvey  v.  Childs,  28  Ohio  St.  319;  Hart  v.  Kelly, 
83  Penn.  St.  286.  See  also  Edwards  v.  Tracy,  62  id.  374,  380; 
Meehan  v.  Valentine,  12  Sup.  Ct.  Rep.  972.  In  some  of  these  juris- 
dictions, it  may  even  be  possible  that  the  lender  would  not  be 
postponed. 

In  many  of  the  States,  however,  the  lender  who  receives  a  propor- 
tion of  the  profits  has  been  held  absolutely  liable  as  a  partner  in 
accordance  with  the  principles  of  AVaugh  v.  Carver,  and  then,  to 
avoid  the  results  of  such  a  principle,  statutes  have  been  passed  by 
which  a  lender  under  such  circumstances  may  be  made  simply  a 
limited  partner  and  liable  to  -lose  only  what  he  puts  in,  if  he  gives 
proper  piiblicity  to  his  real  relations  with  the  firm.  Thus,  the 
same  result  is  reached  as  in  England,  though,  it  would  seem,  in  an 
unscientific  way.  The  following  decisions  follow  AVaugh  v.  Carver, 
and  render  a  limiting  statute  necessary.  Parker  v.  Canfield,  37" 
Conn.  250:  Pettee  v.  Appleton,  114  Mass.  114;  Leggett  v.  Hyde, 
58  K  Y.  272.  But  see  Eager  v.  Crawford,  76  id.  97;  Burnett 
v.  Snyder,  id.  344. 


PARTNERSHIP.  249 

3.  What  is  the  supposed  "  agency  "  test  of  the  existence  of  a 
partnership? 

The  "  agency  "  test  was  started  by  the  case  of  Cox  v.  Hiekman,  8 
H.  of  L.  Cas.  268.  Lord  Wensleydale  there  said,  p.  312:  "  The  law 
as  to  partnership  is  undoubtedly  a  branch  of  the  law  of  principal 
and  agent;  and  it  would  tend  to  simplify  and  make  more  easy  of 
solution  the  questions  which  arise  on  this  subject,  if  this  true 
principle  were  kept  in  view."  The  law  of  partnership,  however,  is 
no  branch  of  the  law  of  agency,  and  Jessel,  M.  R.,  very  properly 
criticised'  the  above  statement  i»n  Pooley  v.  Driver,  L.  R.  5  Chan. 
Div.  458.  He  there  says,  p.  476:  "  Then  Lord  Cranworth  goes  on 
to  speak  of  agency,  and  I  am  almost  sorry  that  the  word  '  agency ' 
has  been  introduced  into  this  judgment,  because,  of  course,  every- 
body knows  that  partnership  is  a  sort  of  agency,  but  a  very  peculiar 
one.  You  cannot  grasp  the  notion  of  agency,  properly  speaking, 
unless  you  grasp  the  notion  of  the  existence  of  the  firm  as  a  separate 
entity  from  the  existence  of  the  partners.  *  *  *  But  when  you  get 
that  idea  clearly,  you  will  see  at  once,  what  sort  of  agency  it  is.  It 
is  the  one  person  acting  on  behalf  of  the  firm."  Agency,  therefore, 
results  from  partnership,  not  partnership  from  agency.  Agency 
for  a  firm,  like  a  division  of  profits,  is  an  attribute  of  partnership, 
but  serves  as  no  very  valuable  test. 

Where,  however,  you  can  be  sure  that  there  is  a  "  separate 
entity  "  in  which  the  title  to  the  partnership  property  vests,  the 
existence  of  a  partnership  is  a  certainty.  In  large  concerns,  firm 
property  is  a  necessity,  but  in  many  joint  ventures  which  cover  but 
a  short  time  or  a  single  joint  enterprise  it  would  be  contrary  to  all 
of  the  intentions  of  the  parties  to  hold  them  partners.  French  v. 
Styring,  2  C.  B.  Rep.  (N.  S.)  357. 

But  even  when  the  firm  exists,  there  is  a  limit  to  the  power  of  the 
partner  to  bind  the  firm.  His,  authority  is  limited  to  the  kind  of 
contracts  the  firm  was  formed  to  enter  into.  The  partnership  re- 
lation also  limits  his  powers.  Thus,  in  a  firm  of  three,  two  of  the 
partners  cannot  contract  to  admit  another  man  into  the  firm.  Bur- 
nett v.  Snyder,  76  X.  Y.  344. 

4.  Why  cannot  one  partner  sue  another  on  a  firm  transaction, 
as,  e.  g.,  for  money  loaned  the  firm? 

The  obstacle  to  the  suit  is  that  the  firm  is  really  the  debtor.  The 
English  law,  contrary  to  that  of  Europe,  does  not  recognize 
the  legal  entity  of  a  firm.,  and  instead  of  the  firm,  therefore,  both 
partners  would  have  to  be  the  parties  defendant.  But  by  the 
common  law  a  man  cannot  be  both  plaintiff  and  defendant  in  the 
same  action.  Estes  v.  Whipple,  12  Vt.  373;  Thayer  v.  Buffum,  9 
Pick.  398. 

On  the  continent,  if  a  partner  is  a  creditor  of  the  firm  he  may 
sue  and  recover  the  amount  due  him  from  the  firm.  $ee  Story  on 
Partnership,  (Ed.  2),  chap.  8,  §  1. 


~50  QUESTIONS  AND  ANSWERS. 

II.  QUASI  OR  NOMINAL  PARTNERS. 

5.  A.,  the  sole  owner  of  property,  represents  that  B.  is  his 
partner,  and  business  is  carried  on  under  the  firm  name  of  A.  & 
B.      Both  A.  and  B.  fail      Should  the  creditors  of  A.  or  those 
of  the  ostensible  firm  have  a  preference  in  the  satisfaction  of 
claims  out  of  the  firm  property,  i.  e.,  stock  in  trade  and  book 
accounts? 

A.  having  represented  that  the  property  belonged  to  the  firm 
would  not  be  allowed  to  deny  that  fact,  and,  of  course,  a  creditor 
could  sue  A.  and  B.  as  partners  on  a  firm  debt,  and  satisfy  his 
claim  on  execution  out  of  the  property  of  the  ostensible  firm.  This 
is  entirely  upon  equitable  grounds,  however,  and  the  right  of  A.'s 
individual  creditors  to  the  property  cannot  be  denied  since  the 
property  actually  belonged  to  him  personally.  They,  therefore,- 
<eould  also  satisfy  their  claims,  upon  execution,  out  of  the  ostensible 
nrni  property.  Bankruptcy,  however,  operates  as  an  execution  in 
favor  of  all  creditors,  and  in  the  case  indicated,  both  the  individual 
creditors  and  those  of  the  ostensible  firm  should  share  equally, 
and  that  is  the  result  in  England.  Ex  parte  Hayman,  L.  R.  8  Chan. 
Div.  11.  The  different  States,  however,  differ  widely  in  the  disposi- 
tion of  such  a  case.  And  it  may  be  proper  to  say  that  there  is 
probably  more  discord  between  the  States  in  partnership  than  in 
any  other  subject. of  the  law.  There  is,  perhaps,  almost  no  point 
upon  which  all  States  agree,  and  unfortunately  some  States  con- 
tradict themselves  with  considerable  frequency. 

In  Xew  York,  the  assignee  in  bankruptcy  of  the  true  owner  is 
postponed  to  a  subsequent  attaching  creditor  of  the  ostensible 
owners.  Kelly  v.  Scott,  49  X.  Y.  595;  Gorham  v.  Innis,  115  id.  87. 

In  Pennsylvania  just  the  opposite  view  is  held,  and  the  attaching 
creditor  of  a  true  owner  is  preferred  to  a  subsequent  attaching  cred- 
itor of  an  ostensible  firm.  Appeal  of  Scull,  115  Penn.  St.  141; 
Stickler's  Appeal,  10  Weekly  Notes,  535.  See  also  Moline  Co.  v. 
Eummell,  14  Fed.  Eep.  155. 

III.     PARTNERSHIP  PROPERTY  AND  THE  INTEREST  OF  A  PARTNER 

THEREIN. 

a.     Whether  a  Partnership  can  Hold  the  Legal  Title  to  Property. 

6.  A.,  meaning  to  transfer  property  to  a  firm,  gives  a  deed 
to  X.,  Y.  &  Co.    Who  holds  the  legal  title? 

The  answer  depends  upon  the  jurisdiction.  The  common  law 
doe?  not  recognize  the  entity  of  a  firm,  so  the  title  must  be 
found  in  ?ome  individuals.  In  the  following  cases  it  is  held 
that  the  title  is  in  X.  and  Y.,  as  trustees  for  the  partnership. 

NOTE.  -  In  Taylor  v.  Wilson,  5ft  N.  H  465.  a  mortgagee  was  allowed  to  show  as  against  firm 
creditors  thnt  the  obsten«ihle  firm  property  was  the  individual  property  of  the  mortgagor. 
In  Howe  v  Kerr.  13  So.  R°p.  730  (Miss.  >.  a  hona  fide  vendee  of  the  true  owner  was  pro- 
tected i'i  his  nnrehHse  against  the  claims  of  firm  creditors.  Contra  :  Still  v.  Focke,  68 
Tex.  716:  Baylor  County  v  Craig,  69  id.  330. 


PARTNERSHIP.  251 

Holmes  v.  Jarret,  Moon  &  Co.,  7  Heisk.  (Tenn.)  506;  Schumpert 
v.  Dillard,  55  Miss.  348;  Beaman  v.  Whitney,  20  Me.  413;  Morse  v. 
Carpenter,  19  Vt.  613;  Shearer  v.  Shearer,  96  Mass.  107,  111; 
Tarbel  v.  Bradley,  7  Abb.  N.  C.  (X.  Y.)  273,  279. 

In  Tarbel  v.  Bradley  (supra),  at  p.  281,  it  was  held  the  recording 
of  a  mortgage,  made  by  one  of  the  partners,  of  his  interest  in  part- 
nership property  was  not  notice  to  a  subsequent  purchaser,  as  the 
mortgage  was  not  "  a  conveyance  affecting  real  estate  "  under  the 
Eecording  Acts;  and  as  it  was  not  a  mortgage  of  "goods  and  chat- 
tels ''  under  the  statute,  it  was  not  -a  chattel  mortgage.  Compare 
Van  Brunt  v.  Applegate,  44  X.  Y.  544. 

It  has  also  been  held,  that  a  deed. from  A.  to  X.  Y.  &  Co.  was 
wholly  inoperative  to  pass  the  title  and  that  it  still  remained  in  the 
grantor.  Tidd  v.  Rines,  26  Minn.  201,  211. 

In  some  other  jurisdictions  it  is  held,  that  such  a  deed  conveys 
title  only  to  X.  and  Y.,  the  persons  whose  names  appear  in  the 
firm  style;  Gossett  v.  Kent,  9  Ark.  602,  607;  Winter  v.  Stock, 
29  CaL  407,  410;  Moreau  v.  Saffarans,  3  Sneed,  595;  and  that  the 
deed  of  X.  and  Y.  will  convey  a  good  and  valid  title.  Winter  v. 
Stock  (supra).  On  principle  it  would  seem  that  title  should  vest  in 
all  parties  described  by  the  firm,  name,  on  the  same  ground  that  all 
parties  described  are  parties  in  the  case  of  a  bill  of  exchange,  and 
it  is  so  held  in  several  States.  Sherry  v.  Gilmare,  58  Wis.  324, 
332;  Brunson  v.  Morgan,  76  Ala.  593.  Georgia,  Minnesota,  Kan- 
sas and  Xorth  Carolina  also  support  this  view. 

The  title  really  shpulfl  vest  in  the  firm  itself,  as  it  does  in  France, 
where  the  entity  of  the  firm  is  recognized.  Such  a  result,  however, 
can  only  be  reached  by  statute  in  this  country. 

b.    Survivorship  of  the  Legal  Title. 

7.  A.  and  B.  are  partners.     A.  dies.     Can  B.  sell  the  firm 
property  and  give  good  title  thereto? 

Yes.  The  legal  title  vests  in  the  survivor,  and  he  can  pass  it, 
but  only  for  the  proper  purposes  of  winding  up  the  partnership. 
He  is  regarded,  in  equity,  as  a  trustee  for  the  estate  of  the  deceased. 
Martin  v.  Crump,  2  Salkeld,  444;  Xicklous  v.  Dahn,  63  Ind.  87; 
Daby  v.  Ericsson,  45  X.  Y.  786,  789.  The  survivorship  of  the  legal 
title*  is  held,  however,  to  apply  only  te  chattels  and  choses  in  action 
and  does  not  extend  to  land.  In  the  case  of  land  practically  all  of 
the  States  have  passed  statutes  making  partners  tenants  in  com- 
mon of  all  land  conveyed  to  them,  and  survivorship  is  not  one  of 
the  incidents  of  tenancy  in  comrfion. 

c.     The  Partner's  Interest  in  Firm  Property. 

8.  Upon  the  death  of  a  partner,  what  right  'has  his  representa- 
tive to  the  firm  property? 

He  has  no  right  whatever  to  the  firm  property.  His  only  right 
is  one  of  an  accounting,  against  which  the  Statute  of  Limitations  to 


252  QUESTIONS  AND  ANSWERS. 

personal  actions  will  run.  Knox  v  Gye,  L.  K.  5  H.  of  L.  656; 
King  v.  Wartelle,  14  La.  Ann.  740. 

"When  the  statute  begins  to  run,  however,  is  a  question  decided 
differently  in  many  jurisdictions.  Some  States,  among  them  Illi- 
nois, Louisiana  and  Virginia,  hold  that  the  statute  begins  to  run 
from  the  time  of  dissolution.  Pierce  v.  McClellan,  93  III.  245. 

Georgia,  West  Virginia,  Tennessee  and  Pennsylvania  hold  that 
'ithe  statute  does  not  run  so  long  as  any  debts  are  due  to  or  from  the 
llirm.  Miller  v.  Harris,  9  Baxt.  101.  Similarly,  in  Alabama,  Ar- 
kansas, Maryland,  Michigan  and  New  Jersey  the  statute  runs  from 
the  time  of  the  last  transaction.  Brewer  v.  Brown,  68  Ala.  210. 

In  New  York,  the  statute  begins  to  run  as  soon  as  the  surviving 
partner  is  in  default,  but  does  not  begin  at  once  upon  dissolution. 
For  a  good  discussion  of  the  subject,  see  Gray  v.  Green,  41  Hun 
(JN.  Y.),  524. 

The  matter  is  more  accurately  understood,  if  one  keeps  in  mind  the 
fact  that  it  is  really  not  the  representative  of  the  deceased  partner, 
but  the  firm,  considered,  in  equity  at  least,  as  an  entity,  which  has  the 
claim  against  the  surviving  partner,  who  holds  the  legal  title  in  trust 
for  the  firm.  On  principle,  therefore,  as  in  the  case  of  any  trust,  the 
statute  ought  not  to  begin  to  run  until  the  trustee,  i.  e.,  the  surviv- 
ing partner,  shows  some  repudiation  of  the  trust  relation. 


9.  A.  wishes  to  sever  his  partnership  relation  with  B.     I& 
he  entitled  to  a  division  of  the  firm  property  in  specie? 

In  most  of  the  States  a  division  in  specie  would  be  allowed,  on 
the  ground  that  the  property  belongs  to  the  partners  personally, 
and  not  to  the  firm  considered  as  an  entity.  Hughes  v.  Devlin, 
23  Cal.  501;  King  v.  Wartelle,  14  La.  Ann.  740;  Greene  v.  Graham, 
5  Ohio,  264.  This  idea,  however,  has  produced  ver*-  conflict- 
ing decisions.  See,  for  example,  Tarbel  v.  Bradley,  7  Abb.  N.  C. 
(N.  Y.)  273-284. 


10.  A.,  of  the  firm  of  A.  &  B.,  dies.  The  firm  property  con- 
sists of  both  realty  and  personalty.  IIoiv  ivill  it  be  obtained  by 
A.'s  representatives? 

The  personal  property  would  be  sold  and  divided  and  Ax's  execu- 
tor would  receive  his  proportionate  share.  The  realty,  however., 
would  not  be  converted  into  personalty,  except  for  the  purpose  of 
adjusting  the  affairs  of  the  partnership.  A.'s  heirs  are  held  to  have 
title  to  A.'s  share  of  the  specific  land  owned  by  the  firm.  Shearer  v. 
Shearer,  98  Mass.  107;  Hewitt  y,  Rankin,  41  Iowa,  35,  39. 


PARTNERSHIP.  253 

11.  The  firm  of  A.  &  1L  being  solvent,  A.  transfers  his  entire 
interest  in  the  firm  assets  to  B.,  who  agrees  to  pay  the  firm  debts. 
What  effect  would  this  have  upon  the  claims  of  firm  creditors? 

By  the  transfer,  the  firm  would  be  dissolved,  and  firm  creditors 
would  no  ledger  have  a  right  against  the  firm  assets,  as  such,  as 
they  had  become  the  separate  assets  of  the  single  partner.  Ex 
'partc  Euffin,  6  Yes.  Jr.  119.  Such  a  transfer,  however,  does 
not  relieve  the  retiring  partner  from  the  obligation  of  paying  firm 
•debts,  and,  assuming  good  faith,  such  a  transfer,  by  which  all 
of  the  firm  property  is  put  beyond  the  immediate  reach  of  firm 
creditors,  should  only  be  allowed  when  the  creditors  are  still  amply 
protected  by  the  amount  of  property  belonging  to  the  partners. 
Ex  partc  Williams,  11  Yes.  Jr.  3;  Griffith  v.  Buck,  13  Md.  102; 
Menagh  v.  Whitwell,  52  N".  Y.  146,  159. 

d.    Transfer  of  a  Partner's  Interest. 

12.  A.,  being  one  of  five  partners,  transfers  all  of  his  interest 
to  X.,  a  stranger.     What  effect  would  this  have  upon  the  claim 
of  firm  creditors  against  firm  assets? 

The  rights  of  creditors  would  not  be  affected  at  all.  X.  would 
only  obtain  bv  the  transfer  a  right  to  an  account  and  a  share  in 
the  profits  of  the  firm.  Menagh  v.  Whitwell,  52  N.  Y.  146,  159. 

e.     The  Interest  Passing  to  the  Representative  of  a  Deceased  Partner 

13.  A.  and  B.,  partners,  purchased  real  estate  for  firm  pur^ 
poses.      Upon  A.'s  death,  what  right  has  his  widow  to  the  realty? 

She  only  has  a  right  after  the  firm  debts  have  all  been  paid. 
Such  realty  is  treated  in  equity  as  vesting  in  the  partners,  in  their 
partnership  relation,  with  the  implied  trust  that  it  shall  be  used 
first  for  firm  purposes.  Dyer  v.  Clark,  5  Met.  562.  See  also 
Qiies.  10,  supra. 

f.     The  Interest  Passing  to  the  Assignee  of  a  Bankrupt  Partner. 

14.  A.,  a  member  of  the  firm  of  A.  <$  E.,  becomes  bankrupt 
and  assigns.      What  right  has  the  assignee  to  the  firm  prop- 
erty? 

It  is  held  that  the  assignee  has  "  no  right  to  take  the  partner- 
ship property,  except  the  share  and  interest  of  the  insolvent,  after 
th:  payment  and  satisfaction  of  the  partnership  debts."  Fern  v. 
Cashing,  4  Cush.  (Mass.)  357.  This  result  is  reached  by  courts 
which  in  terms  repudiate  the  entity  theory  of  a  firm,  and  yet  such  a 
result  is  impossible  on  common-law  principles.  If  the  partners 
are  regarded  as  co-owners  the  assignee  must  obtain  a  right  to  the 
property  itself  which  belonged  to  his  assignor.  Such  is  the  result 
in  England.  Button  v.  Morrison,  17  Yes.  193-203. 


254  QUESTIONS  AND  ANSWERS. 

g.     What  Interest  can  be  Jleached  by  the  Partnership  Creditors  and 
the  Separate  Creditors  of  a  Partner  Respectively. 

15.  A.  and  B.  are  partners.     X.  obtains  judgment  against 
A.  individually,  and  execution  issues.     Can  the  sheriff  seize  th\ 
firm  property  to  satisfy  the  execution? 

In  many  States  the  sheriff  may  seize  the  entire  leviable  prop-, 
erty  of  the  copartnership,  and  sell  as  much  ol  the  interest  of  th<* 
individual  judgment  debtor  as  is  needed  to  satisfy  the  execution 
Smith  v.  Orser,  42  N.  Y.  132; 'Branch  v.  Wiseman,  51  Ind.  1; 
Clarke  v.  Gushing,  52  Cal.  617. 

But  see,  contra,  Keinheimer  v.  Hemingway,  35  Penn.  St.  432,  437. 

In  most  States,  however,  equity  will  intervene  by  injunction 
at  the  instigation  of  the  copartners  to  stop  such  a  sale  of  partnership 
property.  Instead  of  a  sale  a  receiver  will  be  appointed  and  the 
partnership  accounts  taken,  in  order  that  the  real  interest  of  tho 
debtor  partner  in  the  proceeds  may  be  determined.  That  interest 
only  can  be  taken  on  the  execution.  In  California,  Connecticut, 
Mississippi  and  Minnesota,  however,  an  injunction  will  not  be 
granted. 

16.  A.,  B.  and  C.  are  partners  and  are  sued  by  X.  on  a  firm 
debt.    B.  and  C.  defend  successfully  on  the  ground  of  infancy,. 
and  X.  gets  judgment  against  A.  alone.      Can  the  sheriff  sem 
firm  property  to  satisfy  the  execution? 

Yes.  Though  the  courts  persistently  maintain  that  the  property 
belongs  to  the  three,  they  will  allow  the  satisfaction  of  a  firm  debt 
on  an  execution  against  onlv  one  under  the  above  circumstances. 
Whittemore  v.  Elliott,  7  Hun  (N.  Y.),  518,  520. 

So  also,  where  an  action  is  brought  against  several  partners,  and 
has  to  be  discontinued  against  one,  on  the  ground  that  he  is  out  of 
the  jurisdiction.  Though  the  judgment  is  not  against  all  of  the 
partners,  firm  property  can  be  taken  on  execution.  Inbusch  v.  Far- 
well,  1  Black  (U.  S.),  566. 

It  has  been  held,  however,  that  a  partner  has  no  implied  au- 
thority to  confess  judgment  and  bind  his  copartners;  such  a  judg- 
ment binding  only  the  partner  confessing;  and  in  an  execution  upon 
it,  only  the  confessing  partner's  separate  interest  in  the  partnership 
property  can  be  seized  and  sold.  Rhodes  v.  Amsinck,  38  Md.  345. 
353. 

These  results  are  eminently  just.  It  should  always  be  possible 
to  collect  a  firm  debt  out  of  firm  property.  But  where  courts  logi- 
cally follow  the  common-law  principles  and  refuse  to  recognize  a. 
firm  entity,  such  decisions  are  perfectly  impossible.  If  property 
belongs  to  A.,  B.  and  C.,  the  whole  of  it  cannot  be  sold  to  satisfy 
a  judgment  against  A.  alone.  This  is  simply  one  of  the  many  ' 
where  the  court  has  to  act  upon  the  entity  theory,  to  do  simple 
justice,  whether  they  recognize  the  fact  or  not. 


PARTNERSHIP.-  255 

IV.     THE  SEPARATE  PROPERTY  OF  A  PARTNER,  AS  AFFECTED  BY 

THE  PARTNERSHIP  RELATION. 
a.     Its  Liability  to  Process  in  Actions  for  Firm  Debts. 

17.  A.,  B.  and  C.  are  sued  on  a  partnership  debt  and  judg 
ment  is  obtained  against  them.      Can  the  judgment  creditor  at 
iach  the  personal  property  of  A.  without  exhausting  the  firnt. 
property  first? 

Yes.  So  long  as  the  courts  refuse  to  regard  the  firm  as  an  entitj , 
and  proceed  upon  common-law  principles  of  holding  partners  liabL 
both  jointly  and  severally,  the  separate  property  of  a  partner  can  be 
taken  on  execution  in  such  a  case  as  the  above.  Meech  v.  Allen, 
17  N.  Y.  300-303;  Cumming's  Appeal,  25  Penn.  St.  268. 

New  Hampshire  is  perhaps  the  onlv  State  contra.  Miles  v.  Pen- 
nock,  50  N.  H.  564. 

Such  a  result,  however,  is  hard  on  the  separate  partner,  and 
gives  the  firm  creditor  more  protection  than  he  needs.  He  doe.s 
not  need  the  right  to  proceed  against  the  separate  property  of  «i 
partner  when  there  is  an  abundance  of  firm  property,  but  in  the- 
present  condition  of  the  law  the  partner  is  powerless  to  object,  and 
even  equity  cannot  intervene  except  at  the  request  of  a  creditor  of 
the  separate  partner,  who  must  show  that  there  is  sufficient  firm 
property  to  satisfy  the  firm  creditor.  Ex  parte  Kendall,  17  Ves. 
513,  520  —  quoted  in  Meeoh  v.  Allen,  17  N.  Y.  3.00,  304. 

b.     Distribution  of  the  Separate  Property  of  a  Bankrupt  Partner. 

IS.  A.,  a  member  of  the  firm  of  A.  &  B.,  fails.  Can  a  cred~ 
itor  of  the  firm  obtain  a  dividend  out  of  the  separate  estate  of 
A.? 

As  a  general  principle,  he  cannot.  The  rule  in  bankruptcy  i» 
that  firm  creditors  must  be.  paid  out  of  firm  assets  and  separata 
creditors  out  of  the  separate  assets  of  the  individual  partner.  A 
firm  creditor  can  only  secure  a  dividend  from  the  property  of  a 
separate  partner  when  there  is  a  deficiency  in  firm  assets  and  tha 
creditors  of  the  partner  have  been  paid  in  full,  and  similarly  when 
a  separate  creditor  of  a  partner  seek.-  satisfaction  from  firm  asset?. 
Section  36,  U.  S.  Bankruptcy  Act,  U.  S.  Rev.  Stat,  §  5121.  Li 
the  above  case,  therefore,  unless  those  facts  existed,  the  cred- 
itor could  obtain  no  dividend.  Both  classes  of  creditors  can, 
however,  proi'c  their  claims  against  the  assets  of  the  opposite  class, 
to  receive  dividends  only  in  the  case  of  a  surplus.  Ex  parte  Elton, 
3  Ves.  Jr.  238. 

It  has  been  held,  however,  that  where  there  is  no  firm  property, 
and-  no  living  solvent  partner,  both  firm  creditors  and  separate 
creditors  of  the  bankrupt  partner  may  prove  //'//•/  tio.^ii.  H  •  Pease, 
13  X.  B.  R.  168:  PC  Litchfield.  5  Fed.  Rep.  47 :  Brock  v.  Bateman, 
25  Ohio  St.  609.  The  weight  of  authority,  however,  under  the 
Bankruptcy  Act  of  1898,  is  against  this  exception  to  the  rule.  See 
Bankruptcy.  Question  5  and  cases  cited. 


256  QUEST-IONS  AND  ANSWERS. 

c.    Distribution  of  the  Separate  Property  of  a  Deceased  Partner. 

10.  A.  and  B.  are  partners.  A.  dies.  Can  a  firm  creditor 
resort  to  the  assets  of  the  deceased  partner  in  the  first  instance? 

In  almost  all  jurisdictions  he  can.  The  principle  has  been 
broadly  s'tated  by  the  English  courts,  that  "  in  the  consideration  of 
a  court  of  equity,  a  partnership  debt  is  several  as  well  as  joint." 
Wilkinson  v.  Henderson,  1  Myl.  &  K.  582,  588.  A  firm  creditor 
may,  therefore,  in  equity  proceed  against  the  assets  of  the  deceased 
partner  at  once,  treating  the  obligation  as  several.  In  almost  all 
of  the  States  also,  this  idea  has  been  followed,  though  it  would  seem 
to  be  erroneous.  A  partnership  obligation  must  be  just  what  the 
parties  intended  it  to  be,  and  if  it  is  only  joint  at  law,  there  is  no 
reason  why  it  should  be  joint  and  several  in  equity.  It  also  seems 
glaringly  unjust  to  subject  the  estate  of  the  deceased  partner  to  the 
payment  of  firm  debts,  regardless  of  the  fact  that  there  are  firm  as- 
sets. This  line  of  reasoning  has  led  to  the  overruling  of  the  Eng- 
lish cases  in  New  York,  Ohio,  Iowa,  Georgia  and  Wisconsin.  Voor- 
his  v.  Baxter,  18  Barb.  (N.  Y.)  592;  Daniel  v.  Townsend,  21  Ga. 
155. 

Even  in  England,  where  the  rule  is  absolutely  fixed  as  to  the 
right  to  proceed  against  the  estate  of  a  deceased  partner,  the  lia- 
bility of  a  partner  is  not  considered  several  under  any  other  cir- 
cumstances, and. the  error  in  holding  it  so  in  the  case  of  the  death 
of  a  partner  has  been  well  demonstrated.  Kendall  v.  Hamilton, 
L.  R.  4  App.  Cas.  504,  516,  520,  535,  537. 

V.     THE  RELATION  OF  DEBTOR  AND  CREDITOR  BETWEEN  A  PART- 
NERSHIP AND  A  PARTNER. 
a.     Where  a  Partner  is  Debtor  to  the  Partnership. 

20.  A.,  B.  and  C.  were  partners.  A.  borrowed  money  from 
Hie  firm  for  private  purposes,  and  then  failed.  Would  the  firm 
l>e  allowed  to  prove  against  the  separate  estate  of  A.? 

A  firm  or  an  individual  partner  can  never  prove  against  the 
estate  of  one  of  its  members,  with  two  exceptions.  One  is  where 
the  partner  has  acted  fraudulently.  Lodge  and  Fendal,  1  ATes. 
Jr.  166;  Re  McLean,  15  N.  B.  R.  333;  Re  Hamilton,  1  Fed.  Rep. 
800,  812.  The  second  exception  is  where  all  the  creditors  of 
the  firm  have  been  paid.  A  partner  is  then  allowed  to  prove 
against  the  estate  of  a  bankrupt  copartner.  Ex  parte  Taylor,  2 
Rose.  175;  Amsinck  v.  Bean,  22  Wall.  (U.  S.)  395;  Olleman 
v.  Reagan,  28  Ind.  109,  111.  Such  a  course  is  generally  not  al- 
lowed, for  the  reason  that  the  partner  is  competing  with  the  firm 
creditors,  i.  e.,  is  diminishing  the  probability  of  there  being  a  sur- 
pius  of  separate  assets  for  firm  creditors. 


PARTNERSHIP.  257 

The  reason  given  for  not  allowing  a  firm  to  prove  against  the  estate 
of  one  of  its  members  is,  that  if  A..  B.  and  C.,  as  partners,  are  al- 
lowed to  sue  A.  individually,  the  latter  is  both  plaintiff  and  defendant 
in  the  same  case,  which  is  impossible.  And  yet,  in  the  case  of  fraud, 
the  courts  do  allow  just  such  a  so-called  absurdity.  This  simply  goes 
to  show  one  of  the  many  ways  in  which  the  courts  are  hampered  by  re- 
fusing to  look  at  a  firm  in  a  mercantile  light,  and  to  realize  that  the  firm 
really  is  a  separate  entity,  from  which  a  partner  can  borrow,  accord- 
ing to  every  understanding  of  business  men.  Once  this  idea  was  ac- 
cepted by  the  courts,  a  firm  could  sue  a  partner,  or  be  sued  by  him, 
without  any  difficulty. 

21.  A.  gives  a  note  to  his  firm,  A.,  B.  and  C.,  for  money  'bor- 
rowed, and  the  firm  gives  a  note  to  B.,  the  other  partner,  for 
money  due  him.     Both  notes  are  indorsed  to  X.      Can  lie  bring 
suit  on  them? 

Yes.  Though  a  firm  could  not  sue  a  partner  on  his  note,  nor 
could  a  partner  sue  his  firm,  yet  both  notes  may  be  enforced  in  the 
hands  of  an  indorsee.  Woodman  v.  Boothby,  66  Me.  389;  Nevins 
v.  Townsend,  6  Conn.  5;  Ames,  Gas.  on  Partnership,  p.  418,  note 
4,  cases  collected. 

b.    Where  a  Partner  is  Creditor  of  the  Firm. 

22.  A.  loans  money  to  his  firm  A.  &  Co.     Upon  the  bank- 
ruptcy of  the  firm,  and  the  other  partners,  what  rights  has  he 
to  prove  his  claim  for  the  money  so  loaned? 

Where  the  partner  has  loaned  in  fact,  he  can  not  prove  in 
competition  with  the  firm  creditors,  but  can  prove  after  them 
and  ahead  of  the  creditors  of  his  copartner. 

As  a  rule  a  partner  cannot  compete  with  creditors  of  the  firm. 
There  are  four  exceptions. 

1st.  Where  separate  property  of  one  partner  has  been  fraudu- 
lently dealt  with  as  firm  property.  Ex  partc  Westcott,  9  Ch.  App. 
f,26;*£;r  parte  Kendall,  1  Rose, '71. 

'id.  Where  there  are  two  distinct  trades  carried  on  by  the  firm 
and  by  one  or  more  members  of  it,  with  distinct  capitals.  Re  Buck- 
huise.  2  Low.  331;  Ex  parte  St.  Barbe,  11  Yes.  Jr.  413;  Ex  parte 
Sillitoe,  1  Glyn  &  J.  374. 

3d.  Where  a  partner,  having  been  discharged  in  bankruptcy,  be- 
comes a  creditor  of  the  firm,  the  effect  of  his  discharge  being  to  re- 
lease him  from  all  individual  as  well  as  firm  debts.  Re  Bidwell, 
2  N.  B.  R.  229;  Re  Leland,  5  id.  222;  Wilkins  v.  Davis,  15  id.  60. 

4th.  Where  the  debt  sought  to  be  proved  arises  from  an  undis- 
puted contract  apart  from  the  copartnership  and  which  was  in 
existence  at  the  time  of  adjudication  of  bankruptcy,  and  where  there 
can  by  no  possibility  be  any  surplus  of  the  partnership  estate  against 
17 


258  QUESTIONS  AND  ANSWERS. 

•which  proof  is  sought.  Ex  parte  Topping,  4  De  G.,  J.  &  S«  551; 
Ex  parte  Hill,  2  Bos.  &  P.  (N.  R.)  191  (note  a);  In  re  Marwick,  Z 
Ware,  229;  Ex  parte  Cook,  Montague's  Bank  Rep.  228. 

VI.    RELATION  OF  DEBTOR  AND  CREDITOR  BETWEEN  Two  FIRMS 
HAVING  A  COMMON  PARTNER. 

23.  A.  &  B.  owe  money  to  B.  &  C.     A.  &  B.  become  bankrupt. 
Can  B.  &  C.  prove  the  debt  against  the  assets  of  A.  &  B.? 

In  actions  at  law,  suit  is  generally  disallowed  on  the  ground  that 
the  common  partner  cannot  be  both  plaintiff  and  defendant. 
Benny  v.  Metcalf,  28  Me.  389;  Green  v.  Chapman,  27  Vt.  236.  But 
in  equity  the  courts  do  allow  suit,  and  refrain  from  defeating  the 
intention  of  the  parties.  Cole  v.  Reynolds,  18  N.  Y.  74,  77;  Re 
Buckhause,  2  Low.  331.  In  Cole  v.  Reynolds  (supra),  the  court 
quotes  with  approval  1  Story's  Eq.  Jur.  (13th  ed.),  §  680;. 
"  In  all  such  cases  courts  of  equity  look  behind  the  transactions 
to  their  substance  and  treat  the  different  firms,  for  the  purpose  of 
substantial  justice,  exactly  as  if  they  were  composed  of  strangers, 
or  were  in  fact  corporate  companies."  See  Story  on  Partnership 
(6th  ed.),  §  235. 

VII.     ACTIONS  BETWEEN  A  PARTNER  AND  His  COPARTNERS. 

a.     A  Partner  Cannot  Sue  a  Copartner  Upon  a  Partnership  Claim,  or 
Partnership  Liability. 

24.  A.  loans  money  to  his  firm.     Can  he  sue  his  copartners 
to  recover  it?      Suppose  A.  had  bought  goods  from  his  firm, 
could  he  be  sued  by  his  copartners? 

Suit  could  not  be  maintained  in  either  case.  In  the  first,  the 
claim  is  in  reality  against  the  firm,  not  against  the  copartners; 
and  similarly  in  the  second  case,  the  firm  is  the  creditor,  not  the  co- 
partners. Springer  v.  Cabell,  10  Mo.  640;  Camblat  v.  Tupery, 
2  La.  Ann.  10. 

b.     A  Partner  May  Sue  a  Copartner  Upon  a  Personal  Claim. 

25.  Upon  a  partial  payment  of  firm  property  A.  gives  B.  a 
note  for  $5,000.     The  firm  still  exists.     Can  B.  suet 

Yes.  The  claim  has  been  put  into  the  form  of  a  specialty,  and 
A.  and  B.  are  the  only  possible  parties.  The  existence  of  a  firm 
then  becomes  entirely  irrelevant.  Moreover,  as  to  the  $5,000  rep- 
resented by  the  note  they  are  no  longer  partners,  and  it  is  no  longer 
firm  property,  because  it  has  been  taken  out  of  the  current  accounts, 
separated  from  the  partnership  and  appropriated  to  the  partner  to 
whom  it  is  due.  McSherry  v.  Brooks,  46  Md.  103,  116; 
Parsons  on  Partnership  (2d  ed.),  290;  Rockwell  v.  Wilder,  45  Mass. 
556,  561. 


PARTNERSHIP.  259 

Where  the  firm  is  not  a  party  to  the  contract  a  partner  may  sue  a 
copartner,  even  though  the  contract  relates  to  partnership  business,  as 
an  agreement  to  form  a  partnership,  or  to  continue  it  for  a  fixed  period. 
Powell  v.  Maguire,  43  •Gal.  11;  Adams  v.  Tutton,  38  Penn.  St  447,  453; 
Ames,  Cas.  on  Partnership,  462,  cases  collected. 

c.     A  Partner  Cannot  Prove  in  the  Bankruptcy  of  a  Copartner  in 
Competition  with  Firm  Creditors. 

26.  A/s  partner,  B,,  becomes  bankrupt  and  his  separate  estate 
is  insufficient  to  pay  his  individual  creditors.     Can  A.  prove  an 
individual  claim  against  B.? 

Yes.  It  is  true  that  whenever  there  is  more  than  enough  to 
satisfy  separate  creditors  a  solvent  partner  cannot  prove  against  the 
estate  of  his  copartner,  unless  all  firm  debts  are  paid,  as  he  would 
then  be  competing  with  firm  creditors  by  decreasing  the  surplus 
which  would  be  left  for  them.  Ex  parte  Maude,  L.  R.  2  Ch.  App. 
550.  But  when,  as  in  the  present  case,  there  can  be  no  surplus  for 
firm  creditors,  a  solvent  partner  may  prove,  as  he  is  not  then  com- 
peting with  firm  creditors,  but  proving  for  them  by  increasing  his 
own  estate.  In  re  Head,  1894,  1  Q.  B.  Div.  638,'  641;  Ex  partc 
Topping,  4  De  G.,  J.  &  S.  551. 

And  the  partner  may  even  prove  in  competition  with  firm  cred- 
itors in  the  single  case,  where  the  claim  is  founded  upon  fraud  or 
breach  of  trust  by  the  bankrupt  partner.  Ex  parte  Westcott,  L. 
R.  9  Ch.  App.  626. 

VIII.     POWEK  OF  A  PARTNER  TO  ACT  IN  BEHALF  OF  THE  FIRM. 
a.    Sealed  Instruments. 

27.  A  partner,  without  any  authority  from  his  copartners, 
executes  a  deed  intending  to  bind  the  firm.     Is  it  bound?     Sup- 
pose he  had  been  given  parol  authority? 

In  England  and  in  a  very  few  of  the  States,  it  is  held,  that  a 
partner  must  have  authority  under  seal  in  order  to  bind  the  firm 
by  such  an  instrument;  or  as  the  rule  is  commonly  expressed,  the 
authority  to  execute  a  sealed  instrument  must  be  of  equal  formality. 
Harrison  v.  Jackson,  7  Term  Rep.  207;  Re  Lawrence,  5  Fed.  Rep. 
349.  354. 

But  in  this  country  it  is  almost  universally  held  that  the  firm 
is  bound  by  a  deed,  if  there  was  a  previous  express  authority  for 
its  execution  or  a  subsequent  express  ratification  by  the  copartners, 
even  if  such  authority  be  only  parol.  Gwinn  v.  Rocker,  24  Mo. 
290;  Stillman  v.  Harvey,  47  'Conn.  26;  Ames,  Cas.  on  Partner- 
ship, p.  494,  cases  collected;  also  Vol.  I  Am.  Lead.  Cas.  (Hare 
&  Wallace,  5th  ed.)  5,54-555.  Though  settled  law,  this  must  be 
regarded  as  an  unprincipled  compromise.  Either  the  partner 


260  QUESTIONS  AND  ANSWERS. 

should  have  implied  authority  to  execute  a  deed  and  bind  the  firm 
thereby,  as  he  could  bind  it  in  most  other  transactions,  or  the 
strict  rule  of  requiring  authority  under  seal  should  be  applied  as 
in  the  case  of  agency.  See  Agency,  Ques.  26,  supra.  There  is  no 
principle  in  simply  requiring  express  authority.  This  limitation, 
however,  upon  a  partner's  implied  power  to  dispose  of  firm  prop- 
erty for  firm  purposes  is  confined  to  property  which  is  transferable 
only  by  deed.  When  the  instrument  has  the  same  effect  without  a 
seal,  as  in  the  case  of  personal  property,  the  seal  will  be  treated  as  a 
nullity.  Dubois's  Appeal,  38  Penn.  St.  231,  236;  George  v.  Tate, 
102  U.  S.  564,  569. 

28.  A.,  without  authority,  executes  a  sealed  instrument  in  the 
name  of  his  firm.      Has  it  any  binding  force  whatever? 

It  would,  of  course,  have  no  binding  force  upon  the  firm  (Ques. 
27,  supra),  and  on  strict  principle  the  instrument  should  be  a 
nullity,  as  the  partner  had  no  authority  to  act  for  the  firm,  and 
no  intention  to  act  personally.  But  in  accordance  with  the  com- 
mon-law conception  of  a  partnership,  the  partner  who  executes  is 
usually  held  to  be  bound  personally.  Gates  v.  Graham,  12  Wend. 
(N.  Y.)  53;  Harrison  v.  Jackson,  7  Term  Rep.  207;  Re  Lawrence, 
5  Fed.  Rep.  349,  354;  Snyder  v.  May,  19  Penn.  St.  235,  239;  Hos- 
kinson  v.  Eliot,  62  id.  393,  402.  But  in  Fisher  v.  Pender,  7  Jones 
(X.  C.),  483,  one  of  two  partners  signed  the  firm  name  to  a  bond, 
and  it  was  held  the  firm  was  not  bound,  because  the  partner  had  no 
authority  to  bind  the  firm,  and  the  partner  himself  was  not  bound,  as 
it  was  not  executed  as  his  deed,  but  was  executed  and  delivered 
as  the  deed  of  another. 

In  such  a  case  as  the  above,  the  sealed  instrument  is  also  held  binding 
upon  the  firm  when  the  instrument  purports  to  be  that  of  the  firm, 
but  the  seal  is  opposite  the  name  of  the  partner  only.  It  is  then  treated 
as  a  simple  contract  merely,  with  the  sealed  attestation  of  the  execut- 
ing partner.  Cram  v.  Bangor  House,  12  Me.  354,  358. 

The  firm  may  also,  at  times,  be  held  independently  of  the  in- 
strument upon  a  quasi  contract,  where  the  firm  obtains  money  or  goods 
in  exchange  for  the  sealed  instrument.  Walsh  v.  Leunon,  98  111.  27, 
30;  Daniel  v.  Toney,  2  Met  (Ky.)  523. 

b.    Bills  and  Notes. 

29.  State,  in  general,  the  obligation  of  the  members  of  a  part- 
nership raised  by  negotiable  paper  executed  by  one  partner  in  the 
•firm  name. 

It  is  settled  law  that  paper  issued  by  one  partner,  either  actually 
or  ostensibly  for  partnership  purposes,  binds  the  firm.  The  power 
in  each  partner  to  thus  bind  all  his  copartners  springs  from  the 


PARTNERSHIP.  261 

very  existence  of  the  firm,  because  it  is  essential  to  the  conduct  of 
business  and  is  contemplated  by  all  the  partners  when  they  embark 
on  the  enterprise.  1  Lindley  on  Partnership,  *page  266;  Blodgett  v. 
Weed,  119  Mass.  215;  Ames,  Gas.  on  Partnership,  page  496,  cases 
collected. 

The  exceptions  to  this  broad  statement  of  the  rule  are  based  upon 
obvious  reasons.  Thus,  the  rule  does  not  apply  to  nontrading  partner- 
ships, such  as  a  firm  of  lawyers,  except  to  a  very  limited  extent.  A 
strict  necessity  or  a  usage  in  similar  partnerships  must  be  shown  by 
the  plaintiff,  for  the  scope  of  such  partnerships  does  not  carry  any 
implied  general  authority  to  issue  commercial  paper.  Smith  v.  Sloan, 
37  Wis.  285;  s.  c..  19  Am.  Rep.  757;  Pease  v.  Cole,  53  Conn.  53. 

Again,  even  in  a  trading  partnership,  there  is  no  implied  authority 
for  a  partner  to  bind  a  firm  on  negotiable  paper  to  pay  his  individual 
debt  (Dob  v.  Holsey,  16  Johns.  [N.  Y.]  34;  Levereon  v.  Lane,  13  C.  B.  [N. 
S.]  278t ;  nor  for  purposes  unconnected  with  ordinary  business  dealings, 
such  as  guaranteeing  the  debt  of  a  third  party  (Sweetser  v.  French,  2 
Cush.  310);  and  one  who  takes  such  paper  knowing  the  circumstances 
must  show  an  actual  authority  or  subsequent  ratification  by  the  other 
partners.  See  cases  just  cited. 

If  such  paper  comes  before  maturity  into  the  hands  of  a  bona  fide 
purchaser  for  value  the  partners  will  be  liable  to  him.  Carrier  v. 
Cameron,  31  Mich.  373;  s.  c.,  18  Am.  Rep.  192;  Freeman's  Bank  v. 
Sarery,  127  Mass.  75.  7-8. 

It  is  a  strict  rule,  moreover,  that  the  other  partners  are  not  bound 
unless  the  signature  is  that  of  the  firm,  even  if  the  proceeds  actually  go 
to  the  use  of  the  partnership.  Leroy  v.  Johnson.  2  Pet.  187;  Nat'l  Bank 
v.  Thomas.  47  N.  Y.  15;  Ames.  Gas.  on  Partnership,  508,  cases  collected. 

.c.    Simple  Contracts. 

80.  A.f  a  partner,  borrows  money  ostensibly  for  his  firm,  but 
uses  it  personally.  The  lender  acts  in  good  faith.  Is  the  firm 
liable? 

Yes.  The  partner  has  undisputed  power  to  borrow  for  the  firm, 
and  Ms  final  use  of  the  money  would  not  change  the  firm's  liability. 
Wagner  v.  Freschl,  56  N.  H.  495;  Kleinhaus  v.  Generous,  25  Ohio 
St.  667. 

On  the  other  hand,  if  the  partner  borrows  actually  and  ostensibly 
as  an  individual,  he  alone  is  liable,  though  he  afterwards  applies 
"  the  money  for  the  benefit  of  the  firm.  Bank  v.  Sawyer,  38  Ohio 
St.  339;  Wells  v.  Siess,  24  La.  Ann.  178. 

"  A  partner  may,  as  such,  bind  the  partnership  by  any  simple 
contract,  the  making  of  which  may  fairly  be  said  to  fall  within 
the  scope  of  the  firm  business,"  e.  g.: 

Contracts  for  services.     Carley  v.  Jenkins,  46  Vt.  721. 

Hiring  property.     Stillman  v.  Harvey,  47  Conn.  26. 

Contracts  for  insurance.     Hillock  v.  Traders'  Co.,  54  Mich.  531. 

Ames,  Cas.  on  Partnership,  p.  538,  cases  collected. 


262  QUESTIONS  AND  ANSWEKS. 

31.  The  firm  of  A.  &  B.  is  voluntarily  dissolved,  and  a  new 
firm,  A.  &  C.,  is  formed  and  carries  on  the  business  without 
giving  proper  notice  to  the  world  of  the  change.  X.  contracts 
with  the  new  firm,  supposing  that  he  is  dealing  with  the  old  firm. 
Whom  can  he  charge  and  why? 

Assuming  in  all  cases  X.  to  have  no  knowledge  of  the  true  facts; 

1.  If  X.  was  a  prior  dealer  he  can  charge  A.  &  B.  on  the  ground 
of  "  equitable  estoppel/'     X.  is  entitled  to  notice  of  the  change. 

2.  If  he  was  not  a  prior  dealer,  and  it  can  be  shown  that  the 
dissolution  and  change  was  advertised,  he  cannot  charge  A.  &  B., 
as  he  is  then  chargeable  with  notice  of  the  change. 

3.  If  he  was  not  a  prior  dealer  and  the  change  was  not  advertised, 
and  it  is  shown  that  he  in  good  faith  entered  into  the  contract,  rely- 
ing on  their  joint  liability  (that  is,  knowing  A.  &  B.  were  partners 
once),  he  can  charge  A.  &  B. 

4.  He  can  always  charge  A.  &  C.,  as  they  have  received  the  con- 
sideration.    Scarf  v.  Jardine,  7  App.  Gas.  345. 

He  is,  however,  put  to  his  election.  He  cannot  hold  A.,  B.  and  C. 
See  Ames,  Gas.  on  Partnership,  p.  541,  note  3,  "  Prior  dealers," 
and  cases  cited. 

The  requirements  of  an  outgoing  partner,  in  the  matter  of  giving 
notice  of  his  withdrawal,  are  most  strict  He  will  still  be  held  liable 
unless  prior  dealers  with  the  firm  have  had  actual  knowledge  or  spe- 
cific notice  equivalent  to  knowledge.  And  those  who  are  not  prior 
dealers  are  also  entitled  to  treat  the  firm  as  continuing,  unless  the 
world  has  received  public  notice  of  its  termination,  as  by  public 
advertisements. 

Where  a  firm,  which  remains  after  the  dissolution  as  the  successor  of 
the  partnership  dissolved,  whether  carrying  on  business  under  the 
same  or  a  different  name,  has  business  relations  with  a  stranger,  who 
has  had  no  dealings  with  the  former  partnership,  and  who  had  had 
no  knowledge  of  such  partnership,  no  notice  of  any  kind  is  necessary 
to  enable  the  retiring  members  of  the  old  company  to  escape  liability 
for  such  subsequent  contracts;  but  it  would  be  otherwise  held,  where 
the  stranger  had  knowledge  of  the  former  partnership,  but  had  no 
notice,  actual  or  constructive,  of  its  dissolution.  Swigent  v.  Aspden,  45 
N.  W.  Rep.  (Minn.)  738;  Dowzlet  v.  Rawlins,  58  Mo.  75;  Cook  v.  Slate 
Co.,  36  Ohio  St.  135;  Bank  v.  Page,  98  111.  109,  124;  Pratt  v.  Page,  32  Vt. 
13;  Morrison  v.  Perry,  11  Hun  (N.  Y.).  33;  Vernon  v.  Manhattan  Co.,  22 
Wend.  (N.  Y.)  183,  193;  Bank  v.  McChesney,  20  N.  Y.  240;  Lovejoy  v. 
Spafford.  93  U.  Sf.  43O,  431;  Lindley  on  Partnership  (Rapalje  Am.  ed.). 
341,  363:  Wade  on  Notice  (2d  ed.),  §§  489.  490. 

In  Martin  v.  Searles,  28  Conn.  43,  47,  and  Strickler  v.  Conn.  90  Ind. 
469.  471.  the  plaintiff  was  not  charged  with  constructive  notice,  al- 
though the  fact  of  dissolution  was  notorious  in  the  community  where 
he  was  doing  business. 


PARTNERSHIP.  263" 

The  same  rules  apply  where  a  firm  Is  dissolved  by  the  bankruptcy 
•of  a  partner.  If  proper  notice  is  not  given,  any  contract  entered  into 
by  the  solvent  partner  raises  a  claim  which  may  be  proved  against  the 
-estate  of  the  bankrupt  partner.  1  Llndley  on  Partnership  (Rapulje 
Am.  ed.),  212,  577;  Story  on  Partnership  (7th  ed.),  §  313. 

32.  B.,  of  the  firm  of  A.  &  B.,  dies,  and  no  proper  notice  of 
the  dissolution  of  the  firm  is  given.     X.,  a  prior  dealer,  deals 
with  A.  in  ignorance  of  the  facts.     Can  he  charge  the  estate 
of  B.? 

No.  The  law  is  universally  settled,  that  after  the  death  of  a 
partner  the  surviving  partner  can  bind  only  himself,  and  not  the 
estate  of  the  deceased  partner,  nor  the  surviving  partners.  Marlett 
v.  Jackman,  3  Allen  (Mass.),  287,  293;  Lindley  on  Partnership 
{Rapalje  ed.),  337;  Story  on  Partnership  (7th  ed.),  §§  317-319.  It 
is  said  that  death  is  notorious,  but  such  reasoning  is  anything  but 
conclusive,  and  where  a  partner  becomes  insane,  though  the  same 
principle  should  apply,  [Story  on  Partnership  (7th  ed.),  §  295], 
Lindley  on  Partnership  (Rapalje  ed.),  213,  214,  577,  is  authority 
for  the  statement,  that  if  the  insanity  is  not  known,  the  insane 
partner  could  be  charged.  Drew  v.  Nunn,  L.  R.  4  Q.  B.  Div. 
661,  confirms  this  statement.  In  Isler  v.  Baker,  6  Humph.  (Tenn.) 
85,  it  was  held,  however,  that  a  firm  note,  issued  by  a  partner  after 
an  inquisition  of  lunacy  found  against  his  copartner,  could  not  be 
enforced  against  the  lunatic  partner. 

33.  X.,  a  dormant  partner  of  "  The  A.  Co./'  withdraws.    Can 
he  be  charged  on  a  contract  made  after  his  withdrawal,  by  a  party 
who  was  ignorant  of  the  fact  that  he  ever  had  been  a  partner? 

it  is  generally  held  that  X.  could  be  charged.  The  firm  style 
implies  more  than  one  partner,  and  the  presence  of  a  dormant  part- 
ner, though  unknown,  would  of  necessity  affect  the  financial  stand- 
ing of  the  firm,  by  the  presence  of  the  capital  which  he  had  in- 
vested. Elkinton  v.  Booth,  143  Mass.  479;  Shamburg  v.  Ruggles, 
S3  Penn.  St.  148. 

The  rule  in  England  and  in  some  States  (see  Carter  v. 
Whalley,  1  B.  &  Ad.  11;  Warren  v.  Ball,  37  111.  76)  is  that 
you  must  have  actual  knowledge  of  the  existence  of  the  dormant 
partner  in  order  to  charge  him  after  withdrawal,  but  this  seems 
not  to  be  well  founded,  as  it  overlooks  the  influence  which  a  dor- 
mant partner  may  have  upon  the  financial  standing  of  the  firm, 
though  his  presence  is  not  known. 

34.  A.  and  B.  are  copartners.    A.  becomes  bankrupt  and  after- 
wards B.  sells  certain  firm  property.     What  rights  would  A.'s 
assignees  in  bankruptcy  have  against  the  property? 

STone.  Before  the  dissolution  of  the  firm  by  the  assignment  of 
one  of  the  partners,  either  of  them  had  the  right  to  bind  the  other 


264  QUESTIONS  AND  ANSWERS. 

by  selling  firm  property,  but  after  such  dissolution  the  solvent 
partner  has  the  right  to  wind  up  the  business.  No  action  by  the 
assignee,  therefore,  would  be  possible,  because  the  purchaser  would 
get  good  title.  Fox  v.  Hanburg,  Cowp.  445. 

The  power  of  a  solvent  partner  to  transfer  firm  property  in  the 
course  of  winding  up  the  partnership  is  well  established.  Trans- 
fer by  sale;  Browning  v.  Marvin,  22  Hun  (X.  Y.),  547;  Morgan 
v.  Marquis,  9  Ex.  145.  Transfer  in  payment  of  debts;  Wood- 
bridge  v.  Swann,  4  B.  &  Ad.  633. 

The  solvent  partner,  if  honest  and  competent,  and  resident  within 
the  jurisdiction,  has  the  exclusive  right  of  winding  up  the  partner- 
ship. King  v.  Leighton,  100  N.  Y.  356,  392.  See  also  Ames,  Cas. 
on  Partnership,  561,  note  2,  cases  collected. 

Similarly  in  case  of  the  dissolution  of  the  partnership  by  the 
death  of  one  of  the  partners,  the  surviving  partner  or  partners 
may  transfer  firm  property  by  sale  or  otherwise,  for  the  purpose 
of  winding  up  the  partnership.  Manck  v.  Manck,  54  111.  281; 
Breen  v.  Richardson,  6  Cal.  605;  Stearns  v.  Haughton,  38  Vt.  583. 
See  also  Ames,  Cas.  on  Partnership,  567,  note  3,  cases  collected. 

35.  The  firm  of  A.  &  B.  is  dissolved,  and  after  the  dissolu- 
tion B.  indorses  a  note  held  by  the  firm  to  X.  What  rights  has 
X.  against  the  firm? 

He  would  have  no  rights.  After  dissolution  no  one  of  the  part- 
ners can  give  title  to  firm  paper.  All  of  the  former  partners  must 
join  in  the  indorsement  to  make  it  good.  Sanford  v.  Nickels,  '4 
Johns.  (N.  Y.)  224;  Fellows  v.  Wyman,  33  N.  H.  351. 

This  result  is  reached  upon  the  reasoning,  that  a  right  to  transfer 
title  by  indorsement  necessarily  implies  a  right  to  make  the  former 
partners  liable  as  indorsers.  "  It  is  impossible  to  separate  the  right 
to  indorse  a  bill  by  one  possessing  the  title,  from  the  legal  responsi- 
bility on  all  those  having  an  interest  in  it."  Yates,  J.,  Sanford  v. 
Nickels  (supra).  A  partner  may  transfer  firm  assets,  after  dissolution, 
for  any  purpose  of  winding  up  the  firm.  Thursby  v.  Lidgerwood,  69 
N.  Y.  198,  201.  But  a  right  to  charge  by  indorsement  is  not  essential  to 
the  winding  up  of  the  firm,  and,  therefore,  does  not  belong  to  B. 

It  would  seem,  however,  that  the  courts  might  have  held  that  title 
passed  by  such  an  indorsement,  though  it  did  not  operate  as  a  contract 
liability.  This  step  has  never  been  taken,  however,  except  where 
the  indorsement  is  of  a  kind  to  raise  no  liability  upon  the  partners 
as  indorsers.  For  example,  a  bill  may  be  transferred  by  a  partner 
after  dissolution,  if  indorsed  in  the  firm  name,  "  without  recourse." 
Yale  v.  Eames,  1  Met  (Mass.)  486;  Waite  v.  Foster,  33  Me.  424,  426. 
A  firm  bill  negotiable  by  delivery  merely  may  also  be  transferred. 
Tarker  v.  Macomber,  18  Pick.  QIass.)  505,  510.  But  see,  contra,  Mc- 
Daniel  v.  Wood,  7  Mo.  543.  So  also  in  the  case  of  a  bill  payable  to 


PARTNERSHIP.  265 

the  firm  and  indorsed  after  the  death  of  a  partner  by  the  surviving 
partners.  Johnson  v.  Berlizheimer  84  111.  54.  Glasscock  v.  Smith,  25 
Ala.  474,  477,  is  contra,  but  not  to  be  supported. 


36.  One   partner,  without  the   knowledge  of   his  copartners, 
makes  a  general  assignment  of  firm  property  for  the  benefit  of 
creditors.     What  would  be  the  powers  of  the  assignee? 

In  almost  all  jurisdictions  the  assignee  would  have  no  powers, 
unless  there  were  some  extreme  reasons  for  the  partner's  action.  It 
Is  beyond  the  implied  power  of  a  partner  to  make  an  assignment, 
whether  preferential  or  not,  if  his  copartners  are  accessible  for 
consultation.  Holland  v.  Drake,  29  Ohio  St.  441;  Re  Lawrence, 
5  Fed.  Eep.  (N.  Y.)  349. 

The  following  cases  are  contra,  however:  Graves  v.  Hall,  32  Tex. 
665;  with  preferences,  Gordon  v.  Cannon,  18  Gratt.  (Va.)  387; 
without  preferences,  High  v.  Lack,  Phill.  Eq.  (N.  C.)  175;  Kobin- 
son  v.  Crowder,  4  McCord  (S.  C.),  519,  536;  Scruggs  v.  Burruss,  25 
W.  Va.  670. 

In  some  jurisdictions  the  fact  that  a  partner  is  inaccessible  is  enough 
to  give  his  copartners  the  power  to  make  an  assignment.  Forbes  v. 
Scannell,  13  Cal.  242,  286;  Ex  parte  Daniels,  14  R.  I.  500,  501. 

But  see  contra,  Stein  v.  La  Dow,  13  Minn.  412;  Coope  v.  Bowles,  42 
Barb.  (X:  Y.)  87.  95. 

The  absconding  of  a  partner,  however,  is  evidence  of  authority  to 
make  an  assignment.  Kelly  v.  Baker,  2  Hilt  (N.  Y.)  531;  Welles  v. 
March.  30  N.  Y.  344. 

And  surviving  partners  may.  of  course,  assign  for  benefit  of  cred- 
itors. Emerson  v.  Senter,  118  U.  &  3,  8;  Haynes  v.  Brooks,  42  Hun 
(N.  Y.),  528. 

37.  After  the  death  of  A.,  B.,  his  surviving  copartner,  deeds 
the  firm  real  estate  to  X.  for  benefit  of  creditors.     By  A.'s  will 
his  share  of  the  realty  is  devised  to  his  son.     Could  B.  give  a 
good  legal  title? 

Technically  he  could  not,  as  the  deed,  being  a  sealed  instrument, 
could  not  be  the  deed  of  the  deceased  partner.  But  B.  did  trans- 
fer a  good  equitable  title,  and  a  court  of  equity  would  compel  the 
son  to  convey  the  legal  title.  Shanks  v.  Klein,  104  U.  S.  18;  Easton 

v.  Courtwright,  84  Mo.  27,  37. 

Nor  is  this  doctrine  confined  to  a  dissolution  of  the  firm  by  death. 
It  ie  equally  true,  whatever  the  cause  of  the  dissolution,  e.  g..  by  ab- 
sconding. Dupuy  v.  Leavenworth,  17  Cal.  262. 


266  QUESTIONS  AND  ANSWERS. 

• 

38.  X.  is  a  creditor  of  the  firm  of  A.  &  B.     He  gives  B. 
a  general  release.    Can  he  then  recover  the  whole  or  any  portion 
of  the  draft  from  A.? 

No.  The  rule  that  a  release  to  one  of  several  codebtors  discharges 
all  is  applied  to  partnership.  Elliott  v.  Holbrook,  33  Ala.  659,  667. 
Ex  parte  Slater,  6  Ves.  146.  Similarly,  a  covenant  by  a  creditor 
not  to  sue  one  partner  is  :  bar  to  an  action  against  his  copartner. 
Kendrick  v.  O'Neil,  48  Ga.  631,  635. 

The  release  of  a  partner,  however,  will  not  bar  an  action  against 
his  copartners,  if  the  instrument  as  a  whole  imports  an  intention 
to  still  hold  the  firm  estate  and  that  of  the  other  partners. 

39.  After  the  dissolution  of  a  firm,  one  of  the  partners  makes 
a  part  payment  of  a  firm  debt  already  barred  by  the  Statute  of 
Limitations.    Is  the  debt  revived  as  against  all  of  the  partners? 

The  States  are  divided  upon  the  point,  but  in  most  jurisdictions 
it  is  held  that  a  partner  cannot  bind  the  firm,  either  by  a  part 
payment  or  a  new  promise.  Gates  v.  Fisk,  45  Mich.  522;  Kirk  v. 
Hiatt,  2  Ind.  322;  Mix  v.  Shattuck,  50  Vt.  421.  The  reason  given 
for  such  decision  is  that  waiving  *the  statute  is  like  making  a  new 
obligation,  and  is  no  necessary  part  of  winding  up  a  firm.  But 
even  in  jurisdictions  which  so  hold,  the  firm  will-  be  bound  if  the 
creditor  to  whom  the  part  payment  or  new  promise  is  made  has 
had  no  notice  of  the  dissolution.  Gates  v.  Fisk,  supra;  Tate  v.  Cle- 
ments, 16  Fla.  339,  341. 

In  some  jurisdictions,  however,  the  waiver  of  the  statute  will  only 
bind  the  partnership,  if  made  before  the  claim  is  barred  by  the  ex- 
piration of  the  statutory  period.  McOlurg  v.  Howard,  45  Mo.  365; 
Austin  v.  Bostwick,  9  Conn.  496.  But  in  Rhode  Island  it  is  held  that 
a  partner  can  bind  the  firm  by  a  waiver  of  the  statute  after  dissolu- 
tion and  after  the  claim  is  actually  barred.  Turner  v.  Ross,  1  R.  I. 
88.  See  Ames,  Cas.  on  Partnership,  618,  note  2,  cases  collected. 

40.  "  Notice  to  one  partner  is  notice  to  all."     Explain. 

"  When  it  is  said  that  notice  to  one  partner  is  notice  to  all,  what 
is  meant  is  (1),  that  a  firm  cannot,  in  its  character  as  principal,  set 
up  the  ignorance  of  some  of  its  members  against  the  knowledge 
of  others,  of  whose  acts  it  claims  the  benefit,  or  by  whose  acts  it  is 
bound;  and  (?).  that  where  it  is  necessary  to  prove  that  a  firm  had 
notice,  all  that  had  to  be  done  is  to  show  that  notice  was  given  to 
one  of  its  members  as  the  agent,  and  on  behalf  of  the  firm."  1 
Lindley  on  Partnership  (Rapalje  Am.  ed.),  141,  142. 

But  the  nrm  should  not  be  affected  by  the  knowledge  of  a  part- 
ner, if  the  firm  claims,  not  through  his  act,  but  through  the  act  of 
a  copartner.  But  see  contra,  Stockdale  v.  Keyes,  79  Penn.  St.  251. 


PARTNERSHIP.  267 

i 
d.  Judicial  Proceedings. 

41.  Can  a  partner  begin  an  action  in  the  firm  name  without 
consulting  his  copartners?     Who  would  have  the  power  to  dis- 
continue? 

The  common-law  rule  prevails,  that  no  action  can  be  brought  in 
the  firm  name,  but  any  partner  can  bring  a  firm  suit  in  the  name  of 
all  the  partners  without  any  consultation  whatever. 

After  the  action  has  been  begun,  any  partner  who  objected 
would  have  the  power  to  enter  a  discontinuance,  unless  he  were 
acting  fraudulently.  Noonan  v.  Orton,  31  Wis.  265,  274;  Loring  v. 
Brackett,  3  Pick.  403. 

42.  A.  makes  a  contract  ostensibly  for  his  firm.     Can  he  sue 
•on  it  in  his  own  name? 

No.  Under  such  circumstances  all  of  the  partners  must  be 
joined  as  parties  plaintiff,  whether  they  appear  by  name  in  the 
contract  or  not.  Vail  v.  West.  Va.  Co.,  110  U.  S.  215;  May  v.  West. 
Union  Tel.  Co.,  112  Mass.  90. 

If  a  partner  is  in  fact  acting  for  his  firm,  all  of  the  partners  may  be 
properly  joined  as  plaintiffs,  though  the  defendant  did  not  know  that 
the  partner  was  acting  in  his  representative  capacity,  but  the  partner 
may  sue  alone.  Alexander  v.  Barker,  2  Cronip.  &  J.  133,  138;  Badger 
v.  Daenieke,  56  Wis.  678. 

If,  however,  a  partner  makes  a  contract  actually  and  ostensibly  on 
his  own  behalf,  he  must  sue  in  his  own  name.  Agacio  v.  Forbes,  14 
Moo.  P.  C.  160. 

Oorment  partners  may  be  joined  as  plaintiffs,  though  they  need 
not  be.  Robson  v.  Drummond,  2  B.  &  Ad.  303,  307.  See  also  Wright  v. 
Herrick,  125  Mass.  154. 


43.  A.  brings  suit  against  X.  &  Co.  and  serves  the  papers 
only  upon  X.  Is  the  service  good? 

No.  Service  on  one  partner  at  common  law  is  not  service  upon 
the  firm  or  other  partners.  Scott  v.  Bogart,  14  La.  Ann.  261;  1 
Lindley  on  Partnership  (Bapalje  Am.  ed.),  272;  Story  on  Partner- 
ship (7th  ed.),  §  114;  Rice  v.  Doniphan,  4  B.  Mon.  (Ky.)  123; 
Bowin  v.  Sutherlin,  44  Ala.  278,  281. 

Service  on  one  of  the  partners  after  dissolution  is  certainly  not 
sufficient.  Newton  v.  Heaton,  42  Iowa,  593,  597;  Hall  v.  Lanning, 
91  U.  S.  160. 

But  in  any  jurisdiction  wHere  by  statute  you  can  proceed  in  the- 
firm  name,  service  upon  any  partner  is  good  service  upon  the  firm,  and 
by  some  statutes  service  may  even  be  made  upon  an  employee. 


268  QUESTIONS  AND  ANSWERS. 

44.  A  partner  confesses  judgment  against  his  firm.    Against 
what  property  can  execution  issue? 

Execution  could  not  issue  against  any  firm  property.  A  part- 
ner has  no  power  to  confess  judgment  against  tiie  firm.  Soper  v. 
Fry,  37  Mich.  236.  Execution  against  linn  property  will  be  per- 
petually enjoined,  Christy  v.  Sherman,  10  Iowa,  535;  or  set  aside,. 
Morgan  v.  Eichaxdson,  16  Mo.  409,  411;  Ellis  v.  Ellis,  47  N.  J. 
Law,  69,  71;  or  cannot  be  enforced,  Shedd  v.  Bank,  etc.,  32  Vt. 
709,  716.  Contra,  Ross  v.  Howell,  84  Penn.  St.  129. 

The  partner  so  confessing  would  be  individually  bound  by  the 
confession.  Stevens  v.  Bank,  etc.,  31  Barb.  (N.  Y.)  290;  Ellis  v. 
Ellis,  ante.  See  Story  on  Partnership  (7th  ed.),  §  114;  Lindley  on 
Partnership  (Rapalje  Am.  ed.),  272, 

45.  In  a  firm  of  three  partners,  two  object  to  the  signing  of 
a  contract,  a  fact  which  the  other  contracting  party  knows.    He, 
nevertheless,  signs  a  contract  with  the  third  partner.     Is  the 
contract  enforceable?     Suppose  only  one  partner  objected? 

The  weight  of  authority  is  that  if  one  partner  objects,  (and  cer- 
tainly if  the  majority  does)  the  firm  cannot  be  charged.  Moffitt  v. 
Roche,  92  Ind.  96;  Matthews  v.  Dare,  20  id.  248,  273;  Faigley  v. 
Stoneberger,  5  W.  &  S.  564,  566. 

The  reason  given  is  that  the  power  of  one  partner  to  bind  the  others 
is  not  essential  to  the  constitution  of  a  partnership;  it  is  an  implied 
power  only,  and  may,  therefore,  be  controlled  by  a  partner  who  wishes 
to  protect  himself  against  claims  created  contrary  to  his  assent  and 
express  directions. 

On  principle,  the  firm  should  be  bound  even  where  the  objection 
is  known.  If  a  partner  is  not  observing  his  duty  to  his  firm,  acting 
negligently  or  fraudulently,  the  remedy  is  a  dissolution.  The  fol- 
lowing cases  hold  the  firm  is  bound,  despite  the  objections  of  the 
other  partners.  Wilkius  v.  Pearce,  5  Den.  (N.  Y.)  54;  Campbell  v. 
Bowen,  4i>  Ga.  417.  The  reason  given  is:  the  power  of  one  partner 
to  bind  the  others  is  an  incident  to  the  copartnership  relation,  and 
must  exist  while  the  relation  endures. 

A  contract  made  by  a  majority  of  the  partners  will,  in  the  absence 
of  bad  faith,  bind  the  miaority,  although  the  objection  is  known  to 
the  other  contracting  party.  Johnston  v.  Dutton,  27  Ala.  245.  252; 
Staples  v.  Sprague,  75  Me.  458.  See  Fisher  v.  Murray,  1  E.  D.  Smith  (N. 
Y.),  341,  344. 

Any  partner,  however,  may  receive  payment  of  a  firm  debt,  and 
this,  although  other  partners  object  and  the  objection  is  known  to  the 
debtor.  Steele  v.  Bank,  etc.,  60  111.  23.  And  see  also  Gillilan  v.  Ins. 
Co.,  41  N.  Y.  376,  where  payment  was  made  to  an  insolvent  partner 
after  notice  to  the  debtor  of  such  insolvency. 


PARTNERSHIP.  269 

46.  Is  a  firm  liable  for  the  torts  of  the  partners? 
Partners,  like  individuals,  are  responsible  for  the  negligence  of 

their  servants  while  engaged  in  the  business  incidental  to  their  em- 
ployment, and  if  one  partner  does  an  act  consistent  with  his  rela- 
tions to  the  firm,  he  is  considered  in  its  performance  as  the  servant 
of  the  firm.  Gwynn  v.  Duffield,  66  Iowa,  708,  712.  In  other 
words,  if  the  partner  commits  a  tort  while  acting  in  his  representa- 
tive capacity,  the  firm  is  liable.  The  firm  was  held  liable  for  the 
torts  of  a  partner  in  the  following  cases: 

Negligence  Linton  v.  Hurley,  14  Gray  (Mass.)  191. 

Conversion:  Durant  v.  Rogers,  87  111.  508. 

Fraud:  Castle  v.  Bullard,  23  How.  (U.  S.)  172,  183;  Chester  v. 
Dickerson,  54  N.  Y.  1,  11;  White  v.  Sawyer,  16  Gray  (Mass.),  586. 

Malicious  prosecution:  Mcllroy  v.  Adams,  32  Ark.  315;  Eosen- 
kraus  v.  Barker,  115  111.  338. 

Libel:  Lothrop  v.  Adams,  133  Mass.  471;  Noodling  v.  Knicker- 
bocker, 31  Minn.  268. 

The  sole  question  is,  whether  the  man  was  acting  as  a  partner. 
If  not,  of  course  the  firm  is  in  no  way  liable.  Eosenkraus  v.  Barker, 
115  111.  331;  Gwynn  v.  Duffield,  66  Iowa,  708;  Noodling  v.  Knick- 
erbocker, 31  Minn.  268. 

47.  A  partner  transfers  firm  property  to  his  separate  cred- 
itors who  know  of  the  fraud.     Can  the  property  be  recovered 
by  action  in  trover? 

On  common-law  principles  it  cannot  be.  The  firm  cannot  sue 
as  such,  and  when  all  partners  are  joined  as  plaintiffs  then  the 
fraudulent  partner  is  barred  by  his  own  fraud  and  so  the  honest 
partners  are  barred  also. 

In  England,  even  a  surviving  innocent  partner  is  barred.  Jones  v. 
"iates,  9  B.  &  C.  532.  There  is  always  relief  in  equity,  however.  Mid- 
land R.  R.  Co.  v.  Taylor,  8  H.  of  L.  Cas.  751;  2  Lindley  on  Partnership 
<Rapalje  Am.  ed..),  562,  568.  Story  on  Partnership,  §§  220-222.  And  in 
the  following  States  relief  is  given  at  law:  Alabama,  Connecticut, 
Georgia.  Illinois.  Indiana,  Kentucky,  Kansas,  Missouri,  New  York, 
North  Carolina,  Tennessee,  Wisconsin.  See  Purdy  v.  Powers,  6  Barr 
492. 

48.  A  trustee  was  a  member  of  a  firm  of  attorneys  and  em- 
ployed his  own  firm  in  trust  business.     Would  the  trust  estate 
be  liable  for  the  firm  charges? 

No.  In  practically  all  jurisdictions  a  trustee  is  not  allowed  to 
employ  himself  or  his  firm,  whether  honest  or  not.  It  would  raise 
an  antagonism  between  the  man  as  trustee  and  as  individual  in- 


270  QUESTIONS  AND  ANSWERS. 

volving  a  temptation  to  act  too  frequently  or  to  pay  too  much. 
Christophers  v.  White,  10  Beav.  523;  Matthison  v.  Clarke,  3 
Drury,  3. 

In  Massachusetts  and  Pennsylvania,  however,  a  trustee  may  employ 
himself,  and  in  other  jurisdictions  the  rule  has  been  practically  avoided 
by  allowing  the  trustee  to  employ  his  copartner  as  an  individual,  and 
if  the  transaction  is  honest  it  will  stand.  The  proceeding,  however,  is- 
dangerous. 

e.     Liability  of  Firm  for  Breaches  of  Trust. 

4:9.  Property  is  deposited  with  a  firm  for  investment,  as  a, 
trustee,  and  one  partner  misappropriates  it.  Is  the  firm  re- 
sponsible ? 

Yes.  The  firm  has  agreed  to  keep  the  property  safely.  Herr  v. 
Sharp,  83  111.  199;  Sadler  v.  Lee,  6  Beav.  324;  Gilchrist  v.  Brande, 
58  Wis.  184. 

50.  A  trustee,  in  entering  a  firm,  uses  the  trust  estate  as- 
capital.     What  right  has  the  cestui  que  trust  against  the  firm? 

None.  The  firm  being  innocent  as  to  the  nature  of  the  fund  in- 
vested is  treated  as  a  purchaser  for  value.  Hallenback  v.  More, 
44  N.  Y.  Super.  Ct.  107;  1  Bates  on  Partnership,  §  481.  The 
knowledge  does  not  bind  the  firm  as  he  is  cheating  the  firm,  not 
acting  for  it. 

But  where  a  partner,  who  is  a  trustee,  uses  his  cestui's  money  in 
firm  business  to  the  knowledge  of  his  partners  or  under  such  cir- 
cumstances as  to  charge  them  with  knowledge,  the  partners  are  liable. 
Guillon  v.  Peterson,  89  Penn.  St.  163,  170.  See  also  In  re  Ketchum,  1 
Fed.  Rep.  815,  828;  Hitchcock  v.  Peterson,  14  Hun,  (N..Y.)  390. 

f.    Dissolution. 

51.  What  are  grounds  for  the  dissolution  of  a  firm? 

Most  partnerships  axe  for  a  fixed  term  of  years,  when  they  ex- 
pire, as  of  course. 

Partnerships  at  will  expire  upon  notice  to  all  the  other  partners. 
Peacock  v.  Peacock,  ,16  Ves.  49;  Wheeler  v.  Van  Wart,  9  Simons, 
193.  When  a  partnership  for  a  fixed  term  continues  by 
tacit  agreement  it  becomes  a  partnership  at  will  on  the  old  terms, 
so  far  as  applicable.  Sayston  v.  Hack,  52  Md.  173,  189. 

The  court  will  decree  a  dissolution: 

(1)  If  the  object  of  the  firm  is  impossible.  Jennings  v.  Bradde- 
ley.  3  Kay  &  Johns.  78:  Baring  v.  Dix,  1  Cox  Ch.  (Ky.)  213;  Story 
on  Partnership  (7th  ed.),  §  290. 


PARTNERSHIP.  2  71 

(2)  When  one  partner  becomes  insane.     Sayer  v.  Bennet,   1 
Cox  Oh.  (Ky.)  107;  Isler  v.  Baker,  6  Humph.  (Tenn.)  85. 

(3)  When  one  partner's  health  is  seriously  impaired.     Casky  v. 
Casky,  18  Cent.  L.  J.  358;  Story  on  Partnership  (7th  ed.),  §  291. 

(4)  When  the  partners  cannot  agree.     Harrison  v.  Tennant,  21 
Beav.    482.     See  Fairthorne   v.   Weston,    3    Hare,    387;   Lindley 
on  Partnership  (Rapalje  Am.  ed.),  961. 

(5)  When  one  partner  is  guilty  of  grave  misconduct.     Essell  v. 
Hay  ward,  30  Beav.  158;  Story  on  Partnership  (7th  ed.),  §  288. 

(6)  When  all  partners  'desire.     Story  on  Partnership  (7th  ed.), 
§  268. 

There  are  some  causes  which  dissolve  a  firm  per  se  without  any 
decree  of  court. 

(1)  Death  of  a  partner.     Pearce  v.  Chamberlain,  2  Ves.  Sr.  33. 

(2)  Breaking  out  of  war  between  the  countries  where  the  persons 
who  are  in  partnership  reside.    Griswold  v.  Washington,  15  Johns. 
(N.  Y.)  57. 

(3)  The  assignment  by  one  partner  of  all  his  interest  in  the 
partnership  is  ipso  facto  a  dissolution  of  the  partnership,  though 
the  assignment  is  made  to  another  partner.     Marquand  v.  Manuf. 
Co.,  17  Johns.  (N".  Y.)  525;  Horton's  Appeal,  13  Penn.  St.  67. 

It  has  been  questioned,  however,  whether  a  partnership  for  a  term  of 
years  is  ipso  facto  dissolved  by  such  an  assignment.  Ferrero  v.  Bihrl- 
meyer,  84  How.  Pr.  (X.  Y.)  33;  Waller  v.  Davis,  59  Iowa,  103. 

As  to  the  right  of  a  partner  to  dissolve  a  partnership,  formed  for  a 
term  of  years,  see  Skinner  v.  Dayton,  19  Johns.  (N.  Y.)  513,  537,  where 
the  court  said:  "There  can  be  no  such  thing  as  an  indissoluble  part- 
nership. Every  partner  has  an  indefeasible  right  to  dissolve  the  part- 
nership, as  to  all  futm-e  contracts,  by  publishing  his  own  volition  to 
that  effect." 

g.    Winding  up  a  Firm. 

52.  Upon  forming  a  firm,  A.  put  in  $5,000  capital,  B.  $1,000 
and  C.  his  skill.     After  all  the  firm  creditors  have  been  paid, 
the  firm  has  lost  $1,000,  and,  in  addition,  A.  has  loaned  the  firm 
$1,000.    How  would  you  wind  up  the  firm? 

First,  A.  must  be  paid  his  $1,000,  as  any  other  creditor.  Wood  v. 
Scoles,  L.  B,  1  Chan.  App.  369.  The  total  loss  of  the  firm  would 
then  be  $2,000,  which  would  be  apportioned  among  the  three  part- 
ners equally.  Except  by  stipulation,  profits  and  losses  are  distributed 
according  to  numbers  and  not  in  proportion  to  capital  invested. 
Whitcomb  v.  Converse,  119  Mass.  38,  43;  Jones  v.  Butler,  87  N.  Y. 
613,  616. 

53.  Can  a  partner  obtain  the  appointment  of  a  receiver  when 
it  is  not  desired  to  wind  up  the  firm? 

Yes.  A  receivership  does  not  necessarily  lead  to  a  winding  up; 
it  may  be  necessary  to  protect  the  property.  Sheppard  v.  Oxen- 


272  QUESTIONS  AND  ANSWERS. 

fo?d,  1  Kay  &  Johns.  491.  Nor  does  an  accounting.  Fairthorne  v. 
Weston,  3  Hare,  387.  Nor  an  injunction.  Hall  v.  Hall,  12  Beav. 
414. 

54.  A.  dies,  and  at  that  time  his  share  in  A.  &  Co.  is  worth 
$10,000.     His  surviving  copartners  do  not  wind  up  the  firm 
and  at  the  end  of  three  years  the  share  is  worth  $20,000.     Can 
the  executor  recover  it? 

Yes.  It  was  the  duty  of  the  survivors  to  wind  up  the  firm  and 
the  executor  could  not  consent  to  any  other  course.  If  the  firm 
is  not  wound  up,  the  estate  is  entitled  to  the  profit  of  going  on. 
Brown  v.  de  Tastel,  Jacob,  284.  So  also  the  assignee  of  a  bank- 
rupt  partner.  Crawshay  v.  Collins,  15  Ves.  Jr.  218. 

The  profits  will  not  necessarily  be  divided  equally,  'however,  if 
the  skill  of  the  continuing  partners  is  mainly  responsible  for  the 
increase.  Willett  v.  Blanford,  1  Hare,  253. 

h.    Ihities  of  a  Partner  to  His  Firm. 

55.  What  are  the  main  duties  of  a  partner  to  his  firm? 

1.  He  must  consider  only  the  interests  of  his  firm,  and  not  com- 
pete with  it.     He  cannot  buy  from  himself  for  the  firm,  nor  from 
the  firm  for  himself,  nor  in  any  way  make  his  interests  antagonistic 
to  those  of  the  firm.     Bentley  v.  Craven,  18  Beav.  75;  Marshall  v. 
Johnson,  33  Ga.  500;  Bank  Co.  v.  Edson,  56  Barb.  (N.  Y.)  84,  89; 
Ldndley  on  Partnership  (Rapalje  Am.  ed.),  514;  Story  on  Partner- 
ship (7th  ed.),  §  175. 

2.  He  must  work  for  nothing.     No  service  will  entitle  him  to 
compensation  other  than  by  division  of  profits.     Caldwell  v.  Leiber. 
7  Paige  (N.  Y.),  483;  Heath  v.  Waters,  40  Mich.  457,  465;  King  v! 
Hamilton,  16  111.  190;  Drew  v.  Person,  22  Wis.  651. 

A  surviving  partner  is  not  entitled  to  compensation  for  winding 
up  firm  business.  Beaty  v.  Wray,  19  Penn.  St.  516. 

3.  He  cannot  enter  into  any  rival  business,  and  if  he  does  so,  he 
must  account  for  the  entire  profits  to  his  firm.     Caldwell  v.  Leiber, 
7  Paige  (N.  Y.),  483,  494;  Bank  Co.  v.  Edson,  56  Barb.  (N.  Y.)  84, 
89.     But  see  MacDowell  v.  MacDowell,  L.  K.  8  Ch.  Div.  345;  Drew 
v.  Beard,  107  Mass.  64;  Wheeler  v.  Saye,  1  Wall.  (U.  S.)  518,  528. 

If  a  partner  uses  firm  money  in  another  business,  he  must,  of 
course,  account  to  his  copartners  for  profits.  Love  v.  Carpenter, 
30  Ind.  284;  Pomeroy  v.  Benton,  57  Mo.  531;  Long  v.  Majes- 
tro,  1  Johns.  Ch.  (N.  Y.)  305. 

i.     Special  Partner. 

56.  What  are  the  incidents  of  a  special  partnership? 

1.  A  special  partner  risks  only  his  contribution.  Wild  v.  Daven- 
port. 48  X.  J.  Law,  129. 


PABTNEKSHIP.  273 

2.  He  has  no  title  to  firm  assets,  and  nothing  can  be  taken  on  exe- 
cution by  his  separate  creditors.    Harris  v.  Murray,  28  N.  Y.  574. 

3.  He  can  buy  from  the  firm  and  sell  to  it.     4  Abb.  Pr.  107. 

4.  He  can  sue  or  be  sued  by  the  firm.     Clapp  v.  Lacey,  35  Conn. 
463. 

5.  He  is  postponed  to  all  creditors,  but  can  keep  any  collateral 
he  may  have  as  security,  and  has  priority  over  all  other  partners  in 
distribution  of  capital  surplus  upon  winding  up.     Clapp  v.  Lacey, 
supra;  Hayes  v.  Bement,  3  Sandf.  394. 

On  the  whole  subject,  see  Parsons  on  Partnership  (4th  ed.),  chap. 
17. 

18 


AT  COMMON  LAW- 


I.    FOHMS  or  ACTIONS. 

1.  What  are  the  forms  of  actions  at  common  law? 
They  are  ten  in  number. 

(1)  Debt. 

(2)  Detinue. 

(3)  Covenant. 

(4)  Special  assumpsit. 

(5)  General  assumpsit. 

(6)  Trespass. 

(7)  Trover. 

(8)  Replevin. 

(9)  Case. 

(10)  Ejectment. 

2.  What  is  the  action  of  debt? 

It  is  that  form  of  action  which  lies  to  recover  a  certain  sum  of 
money.  It  differs  from  the  action  of  assumpsit  in  that  the  sum  for 
which  the  action  is  brought  must  be  definitely  known  or  readily 
ascertainable,  an  element  not  requisite  to  the  latter  action.  The 
action  may  arise  on  a  simple  contract,  as  money  lent;  on  a  specialty, 
as  a  bond  or  other  sealed  instrument;  on  a  record,  as  a  judgment  of 
court;  or  on  a  statute  fixing  a  penalty.  1  Chitty  on  Plead.  (16th 
Am.  ed.)  159  (*121). 

3.  What  is  the  action  of  detinue? 

Detinue  is  an  action  to  recover  specific  chattels,  or,  if  that  is- 
impossible,  their  value.  ' "  The  gist  of  the  action  is  the  wrongful 
detainer  and  not  the  original  taking.  It  lies  against  any  person 
who  has  the  actual  possession  of  the  chattel,  and  who  acquired  it 
by  lawful  means,  as  either  by  bailment,  delivery  or  finding.  It  is 
a  common  doctrine  in  the  books,  that  this  action  cannot  be  sup- 
ported if  the  defendant  took  the  goods  tortiously,"  but  the  soundness 
of  this  view  has  been  questioned.  1  Chitty  on  Plead.  (16th  Am. 
ed.)  178  (*137). 

4.  Define  the  action  of  covenant. 

It  is  that  form  of  action  which  lies  to  recover  damages  for  breach 
of  a  contract  under  seal.     It  is  frequently  a  concurrent  remedy  with 

•374 


PLEADING  AT  COMMON  LAW.  275 

debt,  but  never  with  assumpsit.  It  is  the  only  proper  action  where 
the  damages  are  not  liquidated  and  the  contract  is  one  under  seal. 
1  Chitty  on  Plead.  (16th  Am.  ed.)  169. 

5.  Define  the  action  of  special  assumpsit. 

It  is  an  action,  for  the  recovery  of  damages  resulting  from  a 
breach  of  an  express  contract  not  under  seal.  1  Chitty  on  Plead. 
(16th  Am.  ed.)  143  (*111). 

6.  Define   the   action  of  general   assumpsit.     What  are  the 
common  counts? 

General  assumpsit  is  an  action  which  proceeds  upon  the  same 
theory  as  special  assumpsit,  except  that  the  promise  of  the  defend- 
ant, on  which  the  plaintiff  bases  his  right  to  sue,  is  a  fictitious  one. 
The  existence  of  a  debt  was  thought  sufficient  consideration  to 
raise  a  promise  to  ray,  and  so  to  allow  an  action  in  general  assumpsit 
in  certain  cases  where  debt  was  ill  adapted. 

The  common  counts  are: 

I.  hidebitatus  counts: 

(a)  Money  counts. 

1.  Money  paid  to  defendant's  use. 

2.  Money  had  and  received. 

3.  Money  lent. 

4.  Interest. 

(b)  Any  state  of  facts  on  which  a  debt  may  be  founded,  as; 

1.  For  use  and  occupation. 

2.  For  board  and  lodging. 

3.  For  goods  sold  and  delivered. 

4.  For  goods  bargained  and  sold. 

5.  For  work,  labor  and  services. 

6.  FOJ  work,  labor  and  materials. 

II.  Quantum  meruit. 

III.  Quantum  valcbat. 
IT.  Account  stated. 

1  Chitty  on  Plead.  (16th  Am.  ed.)  445  (*351),  et  seq. 

7.  Define  the  action  of  trespass. 

Trespass  is  an  action  for  the  redress  of  immediate  injuries  com- 
mitted, with  at  least  some  degree  of  force,  upon  the  person  or  prop- 
erty of  the  plaintiff.  1  Chitty  on  Plead.  (16th  Am.  ed.)  *186. 

8.  Define  the  action  of  trover. 

In  substance  it  is  a  remedy  to  recover  the  value  of  personal  prop- 
erty wrongfully  converted  by  another  to  his  own  use;  the  form  sup- 
poses that  the  defendant  might  have  come  lawfully  by  it,  and  if 


276  QUESTIONS  AND  ANSWERS. 

he  did  not,  yet  by  bringing  this  action  the  plaintiff  waives  the  tres- 
pass; no  damages  are  recoverable  for  the  act  of  taking;  all  must  be 
for  the  act  of  converting. 

The  action  of  trover  or  conversion  was,  in  its  origin,  an  action 
of  trespass  on  the  case  for  the  recovery  of  damages  against  a  person 
who  had  found  goods  and  refused  to  deliver  them  on  demand  to  the 
owner,  but  converted  them  to  his  own  use;  from  which  word,  finding 
(tronvcr],  the  remedy  is  called  an  action  of  trover.  1  Chitty  on 
Plead.  (16th  Am.  ed.)  210. 

9.  Define  the  action  of  replevin. 

It  is  an  action  brought  through  the  medium  of  the  sheriff  to 
recover  chattels,  and  may  be  brought  in  any  case  when  the  owner 
has  goods  taken  from  him  by  another.  The  title  and  right  of  pos- 
session of  the  property  are  the  matters  to  be  tried;  its  value  is  not 
in  issue;  the  plaintiff  recovers  on  the  strength  of  his  own  title,  not 
the  weakness  of  the  defendant's.  He  must  have  the  general  prop- 
erty in  the  goods  taken,  or  a  special  property  therein.  1  Chitty  on 
Plead.  (16th  Am.  ed.)  *183. 

j.0.  Define  the  action  of  case. 

Case,  in  its  comprehensive  form,  had  its  origin  in  the  Statute  of 
Westminster,  2,  13  Edw.  I,  c.  24,  which  provided  as  follows: 

"  And  whensoever,  from  henceforth,  it  shall  fortune  in  the  chan- 
cery, that.in  one  Case  a  Writ  is  found,  and  in  like  Case  falling  under 
like  Law  and  requiring  like  Eemedy,  is  found  none,  the  Clerks  of 
the  Chancery  shall  agree  in  making  a  Writ;  or  the  Plaintiffs  may  ad- 
journ it  until  the  next  Parliament,  and  let  the  Cases  be  written  in 
which  they  cannot  agree,  and  let  them  refer  themselves  until  the 
next  Parliament,  by  Consent  of  men  learned  in  the  Law,  a  writ 
shall  be  made,  lest  it  should  happen  after  that  the  court  should  long 
time  fail  to  minister  Justice  unto  Complainants.'.' 

The  intention  of  the  statute  was  to  allow  the  statement  to  the 
court  of  a  case  for  which  there  was  no  existing  form.  Such  cases 
were  generally  those  in  which  the  injury  was  consequential,  and 
the  practical  difference  between  this  action  and  that  of  trespass, 
which  it  closely  resembles,  is  that  in  trespass,  the  plaintiff  seeks  re- 
dress for  an  immediate  injury,  whereas,  as  stated,  the  injury  is  conse- 
quential in  case,  as,  for  example,  where  the  injury  arises  from  main- 
taining a  public  nuisance.  1  Chitty  on  Plead.  (16th  Am.  ed.)  139, 
191  (*107,  *148),  et  seq. 

11.  Define  the  action  of  ejectment. 

"  This  action  lies  for  the  recovery  of  the  possession  of  real  prop- 
erty in  which  the  lessor  of  the  plaintiff  has  the  legal  interest,  and 
a  possessory  right,  not  barred  by  the  Statute  of  Limitations.  It 
is  not  a  real  action  nor  a  mere  personal  action,  but  is  what  is  termed. 


PLEADING  AT  COMMON  LAW.  27? 

a  mixed  action,  partly  for  the  recovery  of  the  thing  or  property 
itself,  and  partly  to  recover  damages."  Although  the  damages  in  an 
action  of  this  nature  are,  as  a  rule,  merely  nominal,  yet  in  some  cases, 
between  landlord  and  tenant,  such  damages  axe,  in  effect,  the  full 
amount  of  the  mesne  profits  up  to  the  time  of  trial.  Ejectment 
is  an  action  founded  upon  a  legal  fiction,  being  brought  in  the 
name  of  a  nominal  plaintiff,  whose  supposed  right  to  the  possession, 
is  founded  on  a  supposed  demise  made  to  him  by  the  party  or 
parties  who  bring  the  suit. 

The  action  cannot  be  commenced  until  the  real  plaintiff's  right 
of  entry  has  accrued.  "  The  action  is  only  sustainable  for  what 
in  fact  or  in  point  of  law  amounted  to  an  ouster  or  dispossession 
of  the  lessor  of  the  plaintiff.  But  such  ouster  may  and  usually  is 
effected  by  merely  holding  over;  and  an  intermediate  tenant  may  be 
sued  for  the  holding  over  by  his  under-tenant,  though  against  his 
will."  1  Chitty  on  Plead.  (16th  Am.  ed.)  273.  See  also  Real  Prop- 
erty, Ques.  83. 

II.  THE  PLEADINGS. 

a.  Generally. 

12.  What  are  the  regular  parts  of  pleading? 

The  regular  parts  of  pleading  are:  First,  the  declaration; 
second,  the  plea;  third,  the  replication;  fourth,  the  rejoinder; 
fifth,  the  sur-re joinder;  sixth,  the  rebutter;  seventh,  the  sur-rebutter  ; 
eight,  pleas  puis  da r rein  continuance. 

13.  What  are  the  general  requisites  of  a  declaration? 

The  general  requisites  or  qualities  of  a  declaration  are:  First, 
that  it  correspond vriih  the  process,  and,  in  bailable  actions,  with  the 
affidavit  to  hold  to  baal;  second,  that  it  contain  a  statement  of  all 
the  facts  necessary  in  point  of  law  to  sustain  the  action,  and  no 
more;  and,  third,  that  these  circumstances  be  set  forth  with  cer- 
tainty and  truth.  1  Chitty  on  Plead.  244;  Com.  Dig.  Pleader,  C. 
13;  Co.  Lit.  303  a;  Plowd.  84,  122. 

b.  Demurrers. 

1.    GENERAL   RULES. 

14.  The  plaintiff  declares  upon  a  contract  and  fails  to  allege 
performance  of  the  conditions  precedent.     What  should  the  de- 
fendant do? 

He  should  demur  to  the  declaration.  When  either  party,  at  any 
stage  of  his  pleadings,  fails  to  state  good  legal  grounds  why  he 
should  win,  the  other  party  should  demur,  i.  e.,  serve  a  notice  that 
the  plea  is  not  sufficient  in  law,  leaving  the  question  to  the  court, 
whether,  acknowledging  the  truth  -of  the  facts  alleged,  the  party 


278  QUESTIONS  AND  ANSWERS. 

has  a  right  to  judgment.  Under  such  circumstances,  the  court 
passes  solely  upon  a  question  of  law.  1  Chitty  on  Plead.  (16th  Am. 
ed.)  830  (*693.) 

15.  The  plaintiff's  declaration,  though  good  in  substance,  con- 
tains a  conclusion  of  law.    How  should  the  defendant  proceed? 

He  should  file  a  special  demurrer.  A  defect  in  form  cannot 
be  taken  advantage  of  on  a  general  demurrer. 

Originally,  there  was  but  one  form  of  demurrer  and  it  brought  up 
all  questions  of  sufficiency,  both  as  to  form  and  substance.  This  rule 
proved  harsh,  however,  as  a  man  was  frequently  thrown  out  of  court 
on  some  technical  defect  in  form,  which  he  was  not  prepared  to  meet 
as  he  had  no  notice  of  the  ground  of  the  demurrer.  The  statute  of 
27  Eliz.,  chap.  5,  §  1,  was,  therefore,  passed,  which  provided  "  That  from 
henceforth  (1585),  after  demurrer  joined  and  entered  in  any  action  or 
suit  in  any  court  of  record  within  this  realm,  the  judges  shall  proceed 
and  give  judgment  according  as. the  very  right  of  the  cause  and  matter 
in  law  shall  appear  unto  them,  without  regarding  any  imperfection, 
defect,  or  want  of  form,  in  any  *  *  *  pleading  *  *  *  except 
those  only  which  the  party  demurring  shall  specially  and  particularly 
set  down  and  express,  together  with  his  demurrer."  As  a  result  of 
this  statute  the  special  demurrer  was  introduced,  which  concluded 
by  setting  out  the  special  defects  in  form  of  which  the  party  was 
seeking  to  take  advantage,  and  the  old  form,  or  general  demurrer, 
thereafter  only  tested  the  substance  of  the  pleading,  i.  e.,  its  sufficiency 
in  law.  The  one  exception  to  this  was  that  the  form'  of  a  plea  in 
abatement  was  tested  by  a  general  demurrer.  Walden  v.  Holman, 
2  Ld.  Raym.  1015.  This  was  probably  due  to  the  peculiar  nature 
of  such  a  plea.  See  Ques.  22,  23,  infra.  . 

The  statute  of  Elizabeth  was  particularly  needed,  as  a  judgment 
sustaining  a  demurrer  was  final,  and  a  party  often  suffered  a  severe 
penalty  for  a  formal  defect  in  his  declaration.  Though  he  might  gen- 
erally bring  a  new  suit,  the  delay  was  often  fatal.  The  rule  also 
worked  both  ways,  and  where  p  defendant  demurred  to  a  declaration 
and  the  demurrer  was  overruled,  judgment  was  entered  against  him 
at  once  for  the  damages  or  other  relief  demanded.  He  was  deemed 
to  have  had  his  chance  in  court,  and  if  he  preferred  to  rely  upon  a 
defect  in  the  other  pleadings  rather  than  answer  the  facts  alleged, 
he  must  abide  by  the  result  Where  the  action  is  to  recover  a  specific 
sum,  as  upon  a  promissory  note,  the  .plaintiff  has  judgment  at  once  for 
that  sum,  but  where  damages  are  claimed,  as  for  injury  to  property, 
their  amount  is  determined  by  a  subsequent  inquiry.  Maine  v. 
Peck,  60  Me.  498,  501.  At  the  present  day,  however,  the  special  de- 
murrer is  little  used,  as  an  amendment  of  the  pleadings  is  universally 
allowed,  upon  the  payment  of  costs,  where  a  pleading  is  held  bad. 


PLEADING  AT  COMMON  LAW.  279 

16.  A  declaration  is  good  in  form  and  substance.  The  plea 
is  good  in  form  but  bad  in  substance.  The  plaintiff  demurs 
specially.  Judgment  for  whom? 

Judgment  would  be  given  for  the  plaintiff.  A  special  demurrer 
includes  also  a  general  demurrer,  and  where  the  plea  is  bad  in  sub- 
stance, the  plaintiff  is  given  judgment  on  the  merits,  though  the 
formal  defects  which  he  alleges  specially  do  not  exist.  Maine  v. 
Peck,  60  Me.  498. 


17.  Is  a  demurrer  a  plea,  strictly  speaking?   • 

No.  It  has  been  stated  to  be  "  so  far  from  being  a  plea,  that  it 
is  an  excuse  for  not  pleading."  Haiton  v.  Jeffreys,  10  Mod.  Rep. 
280;  s.  c.  Ames,  Cas.  on  Pleading,  6. 


18.  For  what  purposes  does  a  demurrer  admit  the  facts  of 
the  declaration? 

The  admission  is  solely  for  determining  the  question  of  the 
plaintiff's  right  in  law  to  recover  in'  that  specific  case,  grant- 
ing the  truth  of  what  he  alleges.  Barber  v.  Vincent,  Freem.  531; 
s.  c.,  Ames,  Cas.  on  Pleading,  3. 


19.   What  are  the  exceptions  to  the  rule  that  a  demurrer  ad- 
mits the  truth  of  facts  as  stated? 

There  are  four  exceptions  to  the  rule: 

(1)  The  demurrer  does  not  admit  what  the  court,  as  a  court,  knows  • 
to  be  impossible  or  untrue.  Thus,  it  does  not  admit  an  allegation  that 
stones  are  thrown  gently,  nor  does  it  admit  facts  which  have  been 
found  to  be  untrue  by  a  jury  in  the  same  action.     Cole  v.  Mannder, 
2  Rolle's  Abridgment,   548;   s.   c.,  Ames,  Cas.   on  Pleading,   2; 
Tresham  v.  Ford,  Cro.  Eliz.  830;  s.  c.,  Ames,  Cas.  on  Pleading,  3. 

(2)  A  demurrer  does  not  admit  a  conclusion  of  law.     Such  con- 
clusions are  improperly  included  in  any  pleading.    They  are  for  the 
court  to  draw,  and  form  no  part  of  a  cause  of  action  or  defense. 
Millard  v.  Baldwin,  3  Gray,  484;  s.  c.,  Ames,  Cas.  on  Pleading,  10; 
Eex  v.  Knollys,  1  Ld.  Raym.  10;  s.  c.,  Ames,  Cas.  on  Pleading,  4. 

(3)  A  demurrer  does  not  admit  immaterial  allegations.     Scovill 
v.  Seeley,  14  Conn.  238;  s.  c.,  Ames,  Cas.  on  Pleading,  9. 

(4)  A  demurrer  does  not  admit  facts  so  that  the  admission  is 
evidence  against  the  party  demurring  in  the  same  or  any  other 
action.    Stinson  v.  Gardiner,  33  Me.  94. 


280  QUESTIONS  AND  ANSWEES. 

2.   Effect  of  Demurrer  in  Opening  the  Record. 

20.  A.'s  declaration  is  bad  in  substance  and  form;  B.'s  plea 
is  bad  in  substance  but  good  in  form;  A.'s  replication  is  good 
in  both  substance  and  form;  B.  demurs  specially.  Judgment 
for  whom? 

Judgment  would  be  given  for  B.  A  demurrer  at  any  stage  of 
the  pleadings  opens  the  whole  line  of  pleading,  and  the  court  then 
gives  judgment  against  the  party  who  was  guilty  of  the  first  de- 
fect in  substance.  Here,  though  B.'s  plea  is  bad  in  substance,  yet 
A.'s  declaration  is  also  bad  in  substance  and  he  loses.  Anon.,  2 
Wilson,  150;  s.  c.,  Ames,  Gas.  on  Pleading,  24;  Piggot's  Case,  3- 
Eep.,  Part  5,  29  a;  s.  c.,  Ames,  Cas.  on  Pleading,  23. 

The  fact  that  A.'s  declaration  was  bad  in  form  would  not  help  B. 
though  his  demurrer  was  a  special  one.  A  special  demurrer  only 
takes  advantage  of  formal  defects  in  the  pleading  immediately  pre- 
ceding it;  as  to  other  pleadings  it  serves  as  a  general  demurrer  only. 
Defects  in  form  are  waived,  if  not  taken  advantage  of  immediately. 

It  must  be  remembered,  however,  that  though  the  whole  record  is 
opened  by  a  demurrer,  the  court  will  not  put  together  all  of  the  plead- 
ings of  the  plaintiff,  to  make  a  good  declaration  for  him.  He  cannot 
get  judgment,  if  his  declaration  does  not  state  a  good  cause  of  action, 
even  though  his  replication  may  make  up  the  defect.  Marsh  v.  Bulteel, 
5  B.  &  Aid.  507;  s.  c.,  Ames,  Cas.  on  Pleading,  26. 

21.  A.  declares  in  assumpsit.    B.  pleads  (1)  nonperformance 
of  contract  by  A.;  (2)  a  set-off  which  is  bad  in  substance.     A.  de- 
murs to  the  first  plea  and  replies  to  the  second.     How  much  of 
the  record  is  opened  by  the  demurrer?  , 

Only  the  declaration  and  plea  (1)  are  opened.  When  it  is  said 
that  the  demurrer  opens  the  whole  record,  it  only  means  that  it 
opens  that  part  of  the  record  which  the  demurrer  terminates.  Lit- 
tledale,  J.,  says  in  such  a  case:  "  We  must  treat  the  count,  plea, 
and  replication,  and  the  count,  plea  and  demurrer  as  distinct  rec- 
ords and  give  judgment  as  upon  each  without  reference  to  the 
other."  Bavies  v.  Penton,  6  B.  &  C.  216;  s.  c.,  Ames,  Cas.  on 
Pleading,  28. 

22.  A.'s  declaration  is  bad  in  substance.     B.  puts  in  a  plea 
in  abatement  (see  Ques.  23),  which  is  bad  in  substance.     A. 
demurs.    Is  the  whole  record  opened? 

Xo.  This  is  the  only  exception  to  the  rule,  that  the  whole  rec- 
ord is  opened  by  a  demurrer.  Upon  a  demurrer  to  a  plea  in 
abatement,  the  sufficiency  of  the  plea  alone  is  considered.  .This- 
exception  is  probably  explained  by  the  fact  that  a  judgment  upon 
a  demurrer  to  a  plea  in  abatement  was  unlike  all  other  judgments 


PLEADING  AT  COMMON  LAW.  281 

on  demurrers  and  was  not  final,  the  defendant  being  allowed  to 
plead  a  second  time,  or  demur.  The  defendant,  therefore,  was  not 
injured  by  the  demurrer's  being  confined  to  the  plea.  Hastrop  v. 
Hastings,  1  Salk.  212;  s.  c.,  Ames,  Gas.  on  Pleading,  24. 

There  is  one  other  apparent  exception  to  the  rule  that  the  whole  rec- 
ord is  opened,  in  the  case  of  a  discontinuance.  A.  sues  X.,  Y.  and  Z.  X. 
and  Y.  put  in  pleas,  bad  in  substance,  but  Z.  does  not  appear.  A. 
replies  to  X.  and  Y..  but  fails  to  ask  for  jud'gment  against  Z.  by  de- 
fault. X.  and  Y.  demur.  Though  the  pleas  of  X.  and  Y.  are  the  first  . 
pleadings  bad  in  substance,  Judgment  is  given  for  them,  on  the  ground 
that  A.,  having  made  a  discontinuance,  is  out  of  court  and  cannot  de- 
mand judgment.  Tippet  v.  May,  1  Bos.  &  P.  411;  s.  c.,  Ames,  Caa  on 
Pleading,  25. 

c.    Dilatory   Fleas. 

23.  What  were  dilatory  pleas  and  into  what  classes  were  they 
divided  ? 

They  were  pleas  which  were  intended  to  (jelay  the  case  tem- 
porarily or  to  end  it  entirely,  by  having  the  declaration  abated. 
Such  pleas  were  divided  into  three  classes: 

(1)  Pleas  to  the  jurisdiction  of  the  court  over  the  subject-matter 
of  the  suit   or  the  parties.     Such  a  plea,  if  sustained,  was  a  final 
termination  of  the  action,  so  far  as  that  court  was  concerned. 

(2)  Pleas  in  suspense  of  the  action,  as  that  the  plaintiff  was 
outlawed  or  under  some  other  disability.     Such  plea,  if  sustained, 
suspended  the  action  until  the  disability  was  removed. 

(3)  Pleas  in  abatement,  such  as  that  the  plaintiff  was  a  fictitious 
person,  or  was  dead,  or  that  he  or  the  defendant  was  misnamed, 
or  that  a  necessary  party  was  not  joined,  or  that  another  action  for 
the  same  cause  was  pending;  any  one  of  these  pleas,  if  sustained, 
ended  the  particular  suit,  but  another  could  be  brought  in  the  same 
court  provided  the  defect  could  be  avoided. 

It  was  not  enough,  however,  that  the  plea  in  abatement  should 
simply  state  the  fact  that  the  declaration  was  erroneous.  If  it 
alleged  a  misnomer  or  the  nonjoinder  of  a  necessary  party,  the  cor- 
rect name  or  the  necessary  partv  must  be  specified. 

Chitty  on  Plead.  (16th  Am/ed.),  *462,  *473. 

d.    Traverse. 

24.   What  are  the  requisites  of  a  traverse,  in  general? 

A  traverse  must  be  a  direct  denial  of  some  allegation  of  fact 
which  is  to  be  found  in  the  pleading  of  the  opposite  party,  either 
actually  expressed  or  necessarily  implied,  and  which  fact  is  ma- 
terial to  the  plaintiff's  right  to  recover.  If  the  traverse  is  not 
direct,  i.  e.,  is  argumentative,  it  is  bad  on  special  demurrer  for  de- 
fective form,  and  if  it  denies  immaterial  allegations  it  is  bad  on 


282  QUESTIONS  AND  ANSWERS. 

general  demurrer  for  defect  in  substance.  Gilbert  v.  Parker,  2 
ttalk.  629;  s.  c.,  Ames,  Gas.  on  Pleading,  85;  Walker  v.  Jones,  2 
Cr.  &  M.  672;  s.  c.,  Ames,  Cas.  on  Pleading,  89. 

Where,  however,  a  party  has^o  mingled  material  and  immaterial 
facts  in  his  plea,  that  they  cannot  be  separated,  a  traverse  which  of 
necessity  covers  both  will  not  be  held  bad  on  demurrer.  Sir 
Francis  Leke's  Case,  Dyer,  365,  placitum  32;  s.  c.,  Ames,  Gas.,  on 
Pleading,  78. 

A  conclusion  of  law  can  never  be  traversed.  Questions  of  law 
are  for  the  court,  not  the  jury.  Foshay  v.  Riche,  2  Hill  (N.  Y.), 
247;  s.  c.,  Ames,  Gas.  on  Pleading,  89. 

A  traverse  must  always  end  with  a  tender  of  issue,  and  the 
opposing  party  must  either  join  issue  or  demur.  A  party  need  not 
join  issue,  however,,  when  the  traverse  is  in  such  form  as  to  make 
him  prove  more  than  is  necessary,  to  give  him  a  right  of  recover}7. 
Thus,  when  a  plaintiff,  declaring  in  a  policy  of  insurance,  alleges 
that  his  ship,  tackle  and  other  furniture  were  lost,  and  the  de- 
fendant denies  that  the  ship,  and  tackle  and  other  furniture  were 
lost  the  traverse  is  bad  on  general  demurrer.  The  plaintiff  would 
be  entitled  to  recover,  if  anything  was  lost,  whereas,  if  he  joined 
issue,  he  would  be  forced  to  prove  the  loss  of  all.  Goram  v.  Sweet- 
ing, 2  Saund.  205:  s.  c.,  Ames,  Gas.  on  Pleading,  79. 

The  traverses  are  the  general  issue,  specific  traverse,  special 
traverse  and  replication  de  injuria. 

e.   General   Issue  and  Specific  Traverse. 
1.    SPECIAL  ASSUMPSIT. 

25.  What  ore  the  general  issue  and  the  specific  traverses  in 
special  assumpsit? 

The  general  issue  is  non  assumpsit,  which  denies  the  contract  as 
alleged  in  the  declaration.  It  is  used  when  the  defendant  defends 
upon  the  ground  that  he  made  no  promise  at  all,  or  did  not  make 
the  promise  alleged,  or  that  there  was  no  consideration  for  the 
promise,  or  a  different  consideration  from  that  stated,  or  that  the 
plaintiff  has  omitted  to  state  conditions  precedent.  Lyall  v.  Hig- 
gins,  4  Q.  B.  528;  s.  c.  Ames,  Cas.  on  Pleading.  46;  Sieveking  v. 
Button,  3  C.  B.  331;  s.  c.,  Ames.  Cas.  on  Pleading,  48;  Brind  v. 
Dale,  2  M.  &  W.  775;  s.  c.,  Ames,  Cas.  on  Pleading,  40. 

The  specific  traverses  in  special  assumpsit  are  a  denial  of  per- 
formance on  the  plaintiff's  part,  a  denial  of  the  existence  or  per- 
formance of  conditions  precedent,  and  a  denial  of  a  breach  by  the 
defendant.  Non  assnmpsit  by  its  terms  only  denies  the  contract, 
and  not  the  breach.  Smith  v.  Parsons,  8  Car.  &  P.  199;  s.  c., 
Ames,  Cas.  on  Pleading,  91;  De  Pinna  v.  Polhill,  8  Car.  &  P.  78; 
g.  c.,  Ames,  Cas.  on  Pleading,  92. 


PLEADING  AT  COMMON  LAW.  283 

2.  GENERAL  ASSUMPSIT. 

26.  What  are  the  general  issue  and  the  specific  traverse  in 
general  assumpsit? 

The  general  issue  here,  as  in  special  assumpsit,  is  non  assinnpsit. 
As  the  promise  sued  upon  is  one  which  is  implied  by  law  from  the 
existence  of  a  debt,  the  general  issue  denies  the  facts  from  which 
the  law  would  raise  a  promise.  '  Gardner  v.  Alexander,  3  Dowling, 
14G;  s.  c.,  Ames,  Cas.  on  Pleading,  97;  Hayselden  v.  Staff,  5  A. 
&  E.  153;  s.  c.,  Ames,  Cas.  on  Pleading,  50. 

The  specific  traverse  could  be  used  only  to  deny  the  breach, 
which  would  amount  to  a  plea  of  payment.  See  Gould  on  Pleading 
<2d  ed.),  329-332. 

3.    DEBT. 

27.  What  are  the  general  issue  and  specific  traverse  in  debt? 

The  general  issue  is  nnnquam  indebitatus,  which  denies  the  exist- 
ence of  the  debt.  Where  payment  was  made  at  the  time  of  deliver}' 
of  goods,  the  general  issue  is  good,  as  it  is  held  that  no  debt  ever 
arose.  Bussey  v.  Barnett,  9  M.  &  W.  312;  s.  c.,  Ames,  Cas.  on 
Pleading,  98. 

No  specific  traverse  is  possible  in  debt.  The  allegation  of  the 
breach  in  a  declaration  in  debt,  though  necessary,  is  merely  formal, 
and  cannot  be  traversed.  Goodchild  v.  Pledge,  1  M.  &  W.  363;  s. 
c.,  Ames,  Cas.  on  Pleading,  37. 

4.  TRESPASS. 

28.  IVhat  are  the  general  issue  and 'the  specific  traverses  in 
trespass  ? 

The  general  issue  is  not  guilty,  which  denies  that  the  defendant 
was  guilty  of  the  alleged  act  of  trespass.  Gibbons  v.  Pepper,  1 
Lcl.  Eaym.  387;  s.  c.,  Ames,  Cas.  on  Pleading,  58.  The  question  of 
the  wrongfulness  of  the  act  cannot  be  raised  under  the  general  is- 
sue, as  any  act  of  interference  is  technically  a  trespass.  Knapp  v. 
Salsbury,  2  Camp.  500:  s.  c..  Ames,  Cas.  on  Pleading,  100. 

The  specific  traverse  is  used  .in  a  case  of  trespass  to  real  or  per- 
sonal property,  to  deny  the  possession  of  the  property  by  the 
plaintiff.  In  a  case  of  personal  property,  the  plea  is  "  not  possessed," 
and  in  real  property. "  not  the  elope  of  the  plaintiff."  These  traverses 
do  not  deny  the  right  of  possession.  Actual  possession  is  enough 
io  maintain  the  action.  Slocombe  v.  Lyall,  6  Exch.  119;  Squires  v. 
Seward.  16  How.  Pr.  (X.  Y.)  478.  Where  the  action  is  brought 
for  personal  injury  there  is  no  specific  traverse.  The  general  is- 
sue covers  all  material  allegations. 


284  QUESTIONS  AND  ANSWERS. 

5.  TROVER. 

29.  What  are  the  general  issue  and  the  specific  traverse  in 
trover?. 

The  general  issue  is  not  guilty,  which  denies  both  the  act  and  the 
fact  that  it  was  wrongful.  Young  v.  Cooper,  6  Exch.  259;  s.  c., 
Ames,  Gas.  on  Pleading,  63. 

The  specific  traverse  is  not  possessed  and  denies  either  possession 
or  right  of  possession,  according  to  the  plaintiff's  claim.  Thus,  the 
defendant  must  plead  that  the  plaintiff  was  not  possessed,  if  he 
wishes  to  show  that  he  had  a  lien  upon  the  plaintiff's  goods.  Owen 
v.  Knight,  4  Bdng.  N.  C.  54;  s.  c.,  Ames,  Cas.  on  Pleading,  105. 

6.  DETINUE. 

30.  What  are  the  general  issue  and  the  specific  traverse  in- 
detinue  ? 

The  general  issue  is  non  detinet,  which  denies  the  act  of  actual  de- 
tention. Thus  the  plea  would  be  good,  where  the  defendant  had 
offered  to  give  up  the  goods.  Clements  v.  Flight,  8  L.  T.  166;  s.  c., 
Ames,  Cas.  on  Pleading,  66. 

The  specific  traverse  is  not  possessed,  which  denies  the  plaintiff's 
right  to  possession,  and  anything  affecting  that  right  may  be 
shown  under  that  plea,  except  a  lien  or  a  joint  interest,  which  must 
be  pleaded  Li  excuse.  Mason  v.  Farnell,  12  M.  &  W.  *674; 
Richards  v.  Frankum,  6  id.  420;  s.  c.,  Ames,  Cas.  on  Pleading,  110. 

7.  REPLEVIN. 

31.  What  are  the  general  issue  and  the  specific  traverse  in 
replevin  ? 

The  general  issue  is  non  cepit,  and  denies  the  taking  in  the  place 
alleged,  the  place  being  an  essential  part  of  the  wrongful  act. 

A  specific  traverse  is  not  used  in  replevin,  as  the  defendant  wants 
to  secure  the  '  urn  of  the  goods,  and  so  must  put  in  an  avowry,  or 
cognizance,  which  i(s  practically  a  cross-declaration.  To  the  avowry,, 
however,  the  plaintiff  may  put  in  a  specific  traverse.  Thus,  where 
the  defendant,  in  his  avowry,  alleges  that  he  distrained  for  rent 
in  arrears  the  plaintiff  may  plead  ricn  en  arrcre.  Hill  v.  Wright, 
3  Esp.  669;  s.  c.,  Ames,  Cas.  on  Pleading,  113. 

8.    CASE. 

32.  What  are  the  general  issue  and  specific  traverse  in  case,? 

The  general  issue  is  not  guilty,  which  denies  only  "  the  breach  of 
duty  or  wrongful  act,  alleged  to  have  been  committed  by  the  de- 
fendant, and  not  the  facts  stated  in  the  inducement."  Not  guilty, 
indeed,  admits  the  inducement,  i.  e.,  those  facts  which  show  the 


•  PLEADING  AT  COMMON  LAW.  285 

plaintiff's  right,  as"  that  he  owns  a  mill,  and  has  a  right  to  the 
water  of  the  stream.  The  general  issue  in  such  a  case  would  sim- 
ply deny  the  diversion  of  the  water.  Frankum  v.  Earl  of  Fal- 
mouth,  2  A.  &  E.  452;  s.  c.,  Ames,  Cas.  on  Pleading,  114. 

The  specific  traverse  is  used  to  deny  any  material  allegation  in  the 
inducement.  Lewis  v.  Alcock,  3  M.  &  W.  188;  s.  c.,  Ames,  Cas.  on 
Pleading,  121. 

f.    Special  Traverse. 

33.  What  is  a  special  traverse  and  what  is  its  object? 

A  special  traverse  is  a  plea  in  which  the  party  first  denies  in- 
directly, and  then  denies  directly,  that  the  facts  alleged  by  the 
opposing  party  are  true.  The  clause  of  indirect  denial  in  this  plea 
is  known  as  the  inducement  (a  very  different  meaning  from  the  usual 
one  which  the  word  has),  and  the  direct  denial  is  called  the  absque 
hoc  clause,  from  the  words  that  were  used  to  introduce  it.  Thus,  if 
A.  should  plead  that  X.  was  an  Englishman,  B.'s  special  traverse 
would  be  that  X.  was  -a  Frenchman,  absque  hoc,  that  he  was  an 
Englishman. 

The  object  of  the  special  traverse  is  to  put  upon  the  record,  and 
so  directly  before  the  court,  facts  which  could  not  otherwise  be 
shown  except  as  evidence.  The  special  traverse  cannot  be  used, 
however,  in  place  of  the  general  issue,  or  of  any  traverse  of  that 
nature.  Horn  v.  Lewin,  2  Salk.  583;  s.  c.,  Ames,  C#s.  on  Plead- 
ings,, 135. 

34.  What  are  the  general  characteristics  of  the  special  tra- 
verse ? 

The  characteristics  of  the  plea  are: 

1.  After  the  Hilary  Kules   (1834),   it  must  conclude  to  the 
country,  i.  e.,  tender  issue. 

2.  If  it  is  good  in  both  its  parts,  or  even  if  the  absque  hoc  clause 
alone  is  good,  it  cannot  be  pleaded  to.    Like  any  other  traverse,  it 
forced  the  opposing  party  to  either  join  issue  or  demur.    Thorn  v. 
Shering,  Cro.  Car.  586;  s.  c.,  Ames,  Cas.  on  Pleading,  130. 

3.  If  the  absque  hoc  clause  is  bad  in  substance  for  denying  im- 
material allegations  or  for  any  other  reason,  it  may  be  disregarded, 
and  the  inducement,  since  it  tenders  no  issue,  may  be  traversed 
or  otherwise  pleaded  to.     Mayor  v.  Eichardson,  2  H.  Bl.  182;  s.  c., 
Ames,  Cas.  on  Pleading,  138. 

4.  If  either  part  of  the  plea  is  bad  in  form,  i.  e.,  if  the  induce- 
ment is  not  an  indirect  denial,  or  if  the  absque  hoc  clause  does  not 
directly  deny  the  same  facts,  the  plea  is  bad   on  special  demurrer. 
So  also,  if  the  plea  contains  anything  but  the  direct  and  indirect 
denials.     Huish  v.  Philips,  Cro.  Eliz.  754;  s.  c.,  Ames,  .Cas.  on 
Pleading,  130;  Anon.,  3  Salk.  353;  s.  c.,  Ames,  Cas.  on  Pleading, 
135.      ' 

5.  If  either  part  of  the  plea  is  good  in  substance,  the  whole  plea 
is  good  on  general  demurrer. 


286  QUESTIONS  AND  ANSWERS. 

g.    Replication  de  Injuria. 

35.  What  was  the  cause  of  the  introduction  of  the  replica- 
tion de  injuria  and  in  what  actions  could  it  be  used? 

Originally  a  defendant  could  put  in  but  one  plea  to  a  declara- 
tion, but  by  the  Statute  of  4  Anne,  chap.  16,  §  1  it  was  provided  that 
the  defendant  might,  "  with  the  leave  of  the  same  court,  plead 
as  many  several  matters  thereto  as  he  shall  think  necessary  for  his 
defense."  As  against  this  added  advantage  of  the  defendants,  the 
plaintiff  was  allowed,  in  certain  cases,  to  put  in  issue  several  allega- 
tions of  the  plea.  This  was  done  by  the  replication  dc  injuria,  or 
in  its  longer  form  de  injuria  sna  propria  absque  tali  cause  (of  his 
own  wrong,  without  such  cause).  This  was  much  broader  than  the 
specific  traverse  and  in  general  terms  denied  the  material  allega- 
tions of  the  entire  plea.  Crogate's  Case,  8  Rep.  66;  s.  c.,  Ames, 
Cas.  on  Pleading,  143.  As  its  name  and  the  reason  for  its  origin 
show,  such  a  plea  was  only  possible  in  a  replication. 

This  replication  was  only  possible  in  trespass,  case,  replevin  and 
assiimpsit,  and  in  those  actions  was  absolutely  limited  to  cases 
where  the  plea  was  by  way  of  confession  and  avoidance  in  excuse. 
And  even  where  all  of  these  requisites  had  been  complied  with,  the 
replication  could  not  be  used,  where  it  would  put  in  issue  (1)  title 
or  interest^  in  land;  (2)  matter  of  record;  or  (3)  authority  for  the 
acts  from  the  plaintiff  himself.  In  such  cases  a  specific  traverse 
was  necessary.  Crogate's  Case,  8  Rep.  66;  s.  c.,  Ames,  Cas.  on 
Pleading.  143;  Fursdon  v.  Weeks,  3  Lev.  65;  Comyns'  Dig.  Pleader, 
F.  22,  p.  166. 

h.    Confession  and  Avoidance. 

36.  Under  what  circumstances  does  a  defendant  plead  by  way 
of  confession  and  avoidance,  and  into  what  classes  are  such  pleas 
divided? 

"Where  the  defendant  finds  that  the  declaration  does  not  present 
a  case  for  a  demurrer  and  contains  no  allegations  which  can  be 
traversed,  he  must  defend  by  showing  that,  in  spite  of  the  truth  of 
the  declaration,  there  are  reasons  why  he  'should  not  be  liable  for 
damages  in  the  action.  This  is  called  a  plea  by  way  of  confes- 
sion and  Avoidance.  It  is  not  necessary,  however,  to  confess,  in 
terms,  the  truth  of  the  facts  alleged  in  the  declaration.  The  matter 
in  avoidance  alone  need  be  stated,  and  the  declaration  is  admitted, 
on  the  theory  that  a  party  admits  what  he  does  not  deny.  Wise 
v.  Hodsall,  11  A.  &  E.  816:  s.  c.,  Ames,  Cas.  on  Pleading"  59. 

Pleas  by  way  of  confession  and  avoidance  are  divided  into  two 
classes:  (1)  pleas  in  discharge;  and  (2)  pleas  in  excuse.  Pleas  in 
discharge-  confess  the  facts,  and  also  confess  that  they  once  con- 
stituted  a  rood  cai^e  of  action,  but  then  show  that  the  defendant 
has  been  discharged  from  the  liability,  as  by  payment,  release, 
bankruptcy  or  the  action  of  the  Statute  of  Limitation?'.  Goodchild 


PLEADING  AT  COMMON  LAW.  287 

v.  Pledge,  1  M.  &  W.  363;  s.  C.,  Ames,  Cas.  on  Pleading,  37;  Gould 
v.  Lasbury,  1  C.  M.  &  E.  254;  s.  c.,  Ames,  Cas.  on  Pleading,  34. 
Pleas  in  excuse  admit  the  facts  of  the  declaration,  but  show  ad- 
ditional facts,  in  excuse,  on  account  of  which  no  cause  of  action  ever 
arose.  Such  pleas  differ  somewhat  in  the  different  kinds  of  action. 

i.    Pleas  in  Excuse. 
1.    SPECIAL  ASSUMPSIT. 

37.  Give  an  example  of  a  plea  in  excuse  in  special  assumpsit. 
What  does  it  admit? 

Perhaps  the  most  common  case  of  a  plea  in  excuse,  in  special 
assumpsit,  is  where  a  collateral  agreement  is  pleaded,  as  that  the 
defendant  limited  his  liability  to  a  certain  time.  Smart  v.  Hyde, 
8  M.  &  AV.  723;  s.  c.,  Ames,  Cas.  on  Pleadings,  42. 

By  s.uch  a  plea  the  defendant  admits  the  contract  and  breach,  as 
alleged,  but  shows  that  the  breach  was  not  wrongful.  If  the  de- 
fendant wishes  to  dispute  the  consideration  or  the  performance  by 
the  plaintiff,  he  cannot  plead  in  confession  and  avoidance.  Brind 
v.  Dale,  2  M.  &  W.  775;  s.  c.,  Ames,  Cas.  on  Pleading,  40. 

2.    GENERAL    ASSUMPSIT. 

38.  What  is  admitted  by  a  plea  in  excuse  in  general  assump- 
sit?    Give  an  example  of  such  a  plea. 

There  is  no  such  thing  in  general  assumpsit  as  a  plea  of  con- 
fession and  avoidance  in  excuse,  for  whatever  would  amount  to  an 
excuse  would  prevent  the  law  from  raising  a  promise.  Credit  not 
expired,  and  anything  else  in  excuse  would,  therefore,  be  included 
in  a  pica  of  the  general  issue.  Gould  on  Pleading  (2d  ed.),  329- 
332 ;  Wetherell  v!  Everets,  17  Vt.  220. 

3.    DEBT. 

39.  What  is  admitted  by  a  plea  in  excuse  in  debt?     Give  an 
example  of  such  a  plea. 

The  plea*  admits  the  existence  of  the  debt,  and  the  nonpayment, 
and  sets  up  new  matter  justifying  the  nonpayment.  Hayselden 
v.  Staff,  5  A.  &  E.  153;  s.  c.,  A'mes,  Cas.  on  Pleading,  50.  Credit 
not  expired  is,  probably,  properly  pleaded  as  a  plea  in  excuse.  See 
Bussey  v.  Barnett,  9  M.  &  W.  312.  After  about  1830,  however,  no 
one  brought  debt,  and  by  the  Judicature  Act  (1875),  it  was  ex- 
tinguished in  England. 

4.  TRESPASS. 

40.  What  is  admitted  by  a  plea  in  excuse  in  trespass?     Give 
examples  of  such  a  plea. 

The  plea  admits  the  commission  of  the  act,  and,  in  the  case 
of  trespass  to  real  or  personal  property,  admits  the  possession  of 
the  property  in  the  plaintiff. 


288  QUESTIONS  AND  ANSWERS. 

The  common  pleas  are  ownership  in  the  case  of  personalty,  and 
tibcnnn  tcnnncntimi,  (the  defendant's  close),  in  the  case  of  realty. 
In  trespass  to  the  person,  the  plea  is  son  assault  demesne  (plaintiff's 
assault  first).  Wise  v.  Hodsall,  11  A.  &  E.  816;  s.  c.,  Ames,  Cas.  on 
Pleading,  59. 

When  the  defendant  wishes  to  show  that  the  act  was  done  in- 
voluntarily, as  that  he  was  run  away  with,  he  must  plead  not  guilty, 
as  it  was  really  not  his  act.  Gibbons  v.  Pepper,  1  Ld.  Eaym.  387; 
s.  c.,  Ames,  Cas.  on  Pleading,  58. 

5.  TROVER. 

41.  What  is  admitted  by  the  plea  in  excuse  in  trover?     Give 
•an  example  of  such  a  plea. 

Owing  to  the  nature  of  the  action,  the're  can  be  no  plea  in  ex- 
ouse  in  trover.  The  whole  gist  of  the  action  is  the  wrongfulness 
of  the  defendant's  acts;  and  after  admitting  that,  which  Ke  must 
do  if  he  admits  the  conversion,  the  defendant  cannot  then  go  on 
and  excuse  it.  If  the  act  was  not  wrongful,  the  defendant  must 
plead  not  guilty,  and  if  the  plaintiff  was  not  possessed  of  the  goods, 
the  defendant  must  traverse  his  possession  specifically.  Young  v. 
Cooper,  6  Exch.  259;  s.  c.,  Ames,  Cas.  on  Pleading,  63;  Dorrington 
v.  Carter,  1  Exch.  566;  s.  c.,  Ames,  Cas.  on  Pleading,  61. 

6.  DETINUE. 

42.  What  is  admitted  by  the  plea  in  excuse  in  detinue  ?    Give 
an  example  of  such  a  plea. 

The  plea  would  admit  the  right  of  possession  in  the  plaintiff 
and  absolute  detention  upon  the  part  of  the  defendant.  Where 
both  of  these  facts  do  not  exist  there  is  no  cause  of  action.  Under 
such  circumstances,  there  is  little  opportunity  for  a  plea  in  excuse. 
If  the  right  of  possession  in  the  plaintiff  is  to  be  questioned  it 
should  be  done  by  the  plea  of  not  possessed.  The  cases  hold,  how- 
ever, though  it  would  seem  contrary  to  principle,  that  where  the 
defendant  claims  a  lien  upon  goods  he  must  plead  in  excuse,  though 
that  fact  raises  the  question  of  the  right  of  possession.'  Mason  v. 
Farnell,  12  M.  &  W.  674. 

7.    CASE. 

43.  What  is  admitted  by  the  plea  in  excuse  in  case?     Give 
an  example  of  such  a  plea. 

As  in  trover  and  in  detinue,  so  in  case,  the  gist  of  the  action  is 
the  wrongfulness  of  the  defendant's  act.  There  is  little  chance, 
therefore,  for  the  plea  in  excuse,  which  would  admit  the  substance 
of  the  declaration.  The  only  instance  in  which  such  a  plea  is  used, 
in  an  action  on  the  case,  is  a  plea  of  truth  to  an  action  for  slander 
or  libel. 


PLEADING  AT  COMMON  LAW.  289 

III.  DUPLICITY. 

44.  What  is  the  rule  in  regard  to  duplicity  and  how  is  it 
-enforced? 

The  whole  idea  of  common-law  pleading  was  that  the  case 
must  go  to  the  jury  upon  a  single  issue.  Any  declaration,  there- 
fore, which  presented  two  or  more  distinct  grounds  to  support  the 
game  claim,  or  any  subsequent  plea  which  contained  two  or  more 
distinct  answers  to  any  previous  allegation,  was  bad  for  duplicity. 
The  defect  was  merely  a  formal  one,  however,  and  must  be  taken 
advantage  of  upon  special  demurrer.  Humphreys  v.  Bethily,  2 
Vent.  198,  222;  s.  c.,  Ames,  Gas.  on  Pleading,  187. 

Many  pleas  which  at  first  glance  seem  to  be  double,  will  be  found 
not  to  be  so,  because  one  part  is  really  surplusage,  and  mere  surplusage 
never  makes  a  pleading  double.  Gaile  v.  Betts,  3  Salk.  142;  s.  c.,  Ames, 
Cas.  on  Pleading,  186;  Robinson  v.  Rayley,  1  Burrow,  316;  s.  c.,  Ames, 
Cas.  on  Pleading,  188. 

Where  a  replication  de  injuria  is  pleaded  to  a  plea  which  is  bad  for 
duplicity,  the  replication  is  not  double.  It  is  treated  as  a  separate 
traverse  to  each  defense. 

IV.     DEPARTURE. 

45.  Define  departure. 

A  plaintiff  is  guilty  of  departure  when  he  states  one  cause  of  ac- 
tion in  his  declaration,  and  then,  abandoning  that,  states  another 
in  his  replication.  So  a  defendant  is  guilty  of  the  same  fault  if  he 
states  one  ground  of  defense  in  his  plea  and  another  in  his  re- 
joinder. Anon.,  Dyer,  253;  s.  c.,  Ames,  Cas.  on  Pleading,  208; 
Winchelsea  v.  Higden,  2  Barnardiston,  193;  s.  c.,  Ames,  Cas.  on 
Pleading,  213. 

To  be  fatal,  however,  the  departure  must  be  in  the  statement  of  some 
material  fact.  Thus,  where  the  declaration  assigns  a  certain  date  for 
a  contract  and  the  replication  assigns  a  different  date,  the  departure 
is  not  fatal  where  the  exact  date  is  immaterial.  Cole  v.  Hawkins,  1 
Strange,  21;  s.  c.,  Ames,  Cas.  on  Pleading,  212;  Legg  v.  Evans,  6 
M.  &  \V.  36;  s.  c.,  Ames,  Cas.  on  Pleading,  220. 

Where  the  subsequent  pleading  merely  states  additional  facts  which 
reinforce  the  former  one,  there  is.  of  course,  no  departure.  Thus,  where 
the  declaration  sets  out  a  contract  of  apprenticeship,  and  the  plea  aJ- 
leges  infancy  at  the  time  of  making  the  contract,  the  replication  can 
sen  out  a  custom  of  London  that  infants  can  bind  themselves  as  ap- 
prentices, without  being  defective.  Mole  v.  Wallis,  1  Lev.  81;  s.  c., 
Ames.  Cas.  on  Pleading,  209. 

Where  a  declaration  alleges  no  cause  of  action,  it  is  held  a  departure 
if  the  replication  supplies  the  necessary  allegations.    It  would  probably 
be  more  accurate,  however,  to  say  that  the  plaintiff  loses  on  demurrer 
because  his  declaration  is  bad  in  substance. 
19 


290  QUESTIONS  AND  .ANSWERS. 

46.  Is  departure  a  defect  in  form  or  substance? 

Departure  is  held  to  be  a  defect  in  substance,  and  is  always  fatal 
on  general  demurrer.  When  there  is  a  departure  from  the  declara- 
tion there  is,  unquestionably,  a  defect  in  substance,  but  when  the 
rejoinder  departs  from  the  plea  and  sets  up  a  new  defense  it  is  hard 
to  see  why  this  is  more  than  a  defect  in  form,  in  any  case.  The 
rule  is  settled,  however,  that  in  all  cases  a  departure  is  a  defect  in 
substance,  and  so  fatal  on  general  demurrer.  Winchelsea  v.  Hig- 
den,  2  Barnardiston,  193;  s.  c.,  Ames,  Cas.  on  Pleading,  213. 

V.     NEW  ASSIGNMENT. 

47.  What  is  a  new  assignment  and  what  is  its  purpose? 

A  new  assignment  is  a  more  exact  statement  of  the  cause  of  ac- 
tion which  must  be  made  by  the  plaintiff  in  his  replication  when 
his  declaration  has  been  drawn  in  such  general  terms  that  the  de- 
fendant has  misconceived  the  cause  of  action  and  hence  has  an- 
swered in  his  plea  to  a  different  matter  from  that  intended  to  be 
stated  by  the  plaintiff.  Spencer  v.  Bemis,  46  Vt.  29. 

The  purpose  of  the  new  assignment  was  to  simplify  the  issues  for 
the  jury,  and  the  rules  of  common-law  pleading  required  it  for  this 
purpose. 

A  new  assignment  was  simply  a  declaration.  It  admitted 
nothing  which  was  stated  in  the  plea,  but  merely  passed  it  over  in 
silence.  The  pleadings  then  proceeded  as  usual.  Xorman  v.  West- 
cornbe,  6  L.  J.  R.  Ex.  164;  s.  c.,  Ames,  Cas.  on  Pleading,  246. 

48.  Can  a  plaintiff  both  reply  and  new  assign  at  the  same 
time  ? 

It  depends  upon  the  declaration.  Where  that  alleges  but  a  single 
act  on  the  part  of  the  defendant,  the  plaintiff  cannot  both  new  as- 
sign and  reply.  Spencer  v.  Bemis,  46  Vt.  29.  And  when  the  act  is 
stated  in  definite  terms  and  the  plea  meets  the  allegations  no  new 
assignment  is  possible.  Any  change  would  then  be  a  departure. 
Taylor  v.  Smith,  7  Taunt.  156;  s.  c.,  Ames,  Cas.  on  Pleading, 
238.  But  when  the  plaintiff  has  alleged  several  acts  on  the  part 
of  the  defendant,  who  has  answered  some  in  his  plea,  but  missed 
others,  the  plaintiff  may  reply  to  those  which  have  been  answered, 
and  new  assign  as  to  those  which  have  been  missed.  Prettyman  v. 
Lawrence,  Cro.  Eliz.  812;  s.  c.,  Ames,  Cas.  on  Pleading,  233.  In- 
deed if  the  plaintift  does  not  new  assign  in  such  a  case,  but  simply 
joins  issue  on  the  plea,  he  will  be  confined  in  his  proof  to  those 
acts  to  which  the  defendant  has  correctly  pleaded.  Beyond  that 
his  declaration  has  practically  been  abandoned  by  his  failure  to  new 
assign.  Rogers  v.  Custance,  1  Q.  B.  77;  s.  c.,  Ames,  Cas.  on  Plead- 
ing. 251:  Monprivatt  v.  Smith.  2  Camp.  175;  s.  c.,  Ames,  Cas.  on 
Pleading,  235. 


PLEADING  AT  COMMON  LATI.  291 

49.  A.*s  declaration  alleges  that  B.  broke  and  entered  his 
close  called  Black  Acre.     B.  pleads  that  Black  Acre  was  his  close. 
On  trial  it  is  shown  that  both  A.  and  B.  own  a  close  called 
Black  Acre?     Judgment  for  whom? 

Judgment  must  be  given  for  B.,  as  he  has  proved  his  plea.  The 
plaintiff  must  make  sure  that  his  declaration  is  being  answered. 
Huddart  v.  Rigby,  L.  E.  5  Q.  B.  139;  s.  c.,  Ames,  Cas.  on  Plead- 
ing, 260. 

VI.     MOTIONS  BASED  ON  THE  PLEADINGS. 
a.      Arrest  of  Judgment. 

50.  When  will  judgment  be  arrested  and  what  is  the  effect 
of  such  action  by  the  court? 

The  court  will,  upon  motion,  arrest  judgment  when  the  plaintiff 
has  obtained  a  verdict,  but  has  done 'so  upon  pleadings  which  are  bad 
in  substance.  It  is  then  too  late  for  the  defendant  to  demur,  but  a 
motion  in  arrest  of  judgment  has  the  same  effect  in  opening  the 
whole  record,  and  if  the  plaintiff's  pleadings  are  defective  in  sub- 
stance he  will  not  be  allowed  to  take  advantage  of  his  verdict. 
Brooke  v.  Brooke,  Siderfin,  184;  s.  c.,  Ames,  Cas.  on  Pleading,  266. 

The  effect  of  an  arrest  of  judgment  is  that  the  case  stops  where 
it  is  and  each  party  pays  his  costs.  The  plaintiff  must  begin  again 
if  he  wishes  to  prosecute  his  suit.  1  Chitty  on  Plead.  (16th 
Am.  ed.)  830  (*693). 

51.  Suppose  a  plaintiff  gets  a  verdict  upon  a  traverse  of  an 
immaterial  point  in  the  plea.     Will  the  judgment  be  arrested? 

Xo.  A  repleader,  however,  will  be  awarded.  The  reason  given 
for  not  arresting  judgment  is  that  the  plaintiff  may  have  a  better 
answer  to  the  plea.  This  seems  rather  weak  reasoning,  however, 
as  the  replication  would  have  been  fatally  bad  upon  demurrer. 
The  point,  however,  is  settled.  Gordon  v.  Ellis,  7  Man.  &  G.  607; 
s.  c.,  Ames,  Cas.  on  Pleading,  268. 

52.  A.  obtains  a  general  verdict  with  general  damages  upon 
a  declaration  containing  several  counts,  some  of  which  are  bad 
in  substance.     Will  the  judgment  be  arrested? 

Xo.  The  plaintiff  is  entitled  to  judgment  on  the  good  counts 
and  the  fault  is  with  the  jury  in  not  specifying  the  counts  upon 
which  the  verdict  was  given.  The  plaintiff  should  not  be  forced 
to  beg-in  again,  but  a  venire  dc  noro,  which  summons  a  new  jury, 
will  be  awarded.  Leach  v.  Thomas,  2  M.  A:  \V.  427;  s.  c.,  Ames, 
•  •n  Pleading,  266. 


292  QUESTIONS  AXD  ANSWERS. 

b.   Non  Obstante  Veredicto. 

53.  When  is  a  motion  granted   for    judgment  non  obstants 
veredicto? 

Such  a  motion  is  granted  when  the  defendant,  in  some  one  of  his 
pleas,  has  confessed  the  plaintiff's  cause  of  action,  but  has  obtained 
a  verdict  upon  some  immaterial  issue  which  has  been  joined.  Lacy 
v.  Reynolds,  Cro.  Eliz.  214;  s.  c.,  Ames,  Cas.  on  Pleading,  275. 
The  motion  will  also  be  granted  when  the  plaintiff  has  obtained  a 
verdict  upon  some  material  traverse  and  the  defendant  has  suc- 
ceeded upon  an  immaterial  issue.  Couling  v.  Coxe,  6  D.  &  L.  399; 
s.  c.,  Ames,  Cas.  on  Pleading,  283. 

The  courts,  however,  refused  to  take  the  final  step  of  granting  the 
motion,  where  there  was  a  single  immaterial  traverse  to  the  declaration 
on  which  the  defendant  had  succeeded.  Duke  of  Rutland  v.  Bagshawe, 
19  L,.  J.  R.  (N.  S.)  'C.  L.  234.  On  principle,  they  should  "have  held  that 
the  cause  of  action  had  been  confessed  by  not  being  denied. 

The  motion  for  judgment  non  obstante  has  almost  universally  been 
made  by  the  plaintiff,  though  there  seems  no  reason,  in  principle,  for 
this. 

c.     Repleader. 

54.  When  will  a  motion  for  a  repleader  be  granted,  and  what 
is  its  effect? 

A  repleader  will  be  ordered  at  the  motion  of  either  party,  but 
only  after  verdict,  in  certain  cases  where  the  parties  have  gone  to 
trial  on  an  immaterial  issue.  The  effect  of  granting  a  repleader  is 
that  the  pleadings  must  begin  anew  from  the  point  where  the  first 
immaterial  pleading  appears  upon  the  record,  and  each  party  must 
pay  his  own  costs.  Staple  v.  Heydon,  6  Mod.  1;  s.  c.,  Ames,  Cas. 
on  Pleading,  293. 


PROPERTY; 


I.    NATURE. 

1.  What  are  the  different  classes  of  personal  property? 
They  are  two,  chattels  real  and  chattels   personal.     Chattels 

real  are  those  rights  in  real  property  of  which  the  duration  is  fixed 
or  ascertainable,  and,  therefore,  regarded  as  transitory.  Leases  for 
years  are  practically  the  only  instance. 

Chattels  personal  are  things  that  are  movable.  They  are  also 
described  as  "  any  property  whatever,  except  real  estate,  or  some 
property  therein."  Eobinson  on  Elementary  Law,  152.  Chattels 
personal  are  subdivided  into  choses  in  possession  and  choses  in  ac- 
tion. The  former  are  those  of  which  the  owner  actually  has  the 
enjoyment;  the  latter  are  those  of  which  he  has  not  the  possession, 
but  only  a  bare  right  to  possession,  and  are  so  called  because  by  an 
action  or  suit  at  law  the  possession  may  be  gained.  2  Bl.  Com. 
384-388,  396;  Schouler  on  Pers.  Prop.  25,  ff. 

An  annuity  to  X.  and  his  heirs  may  be  used  as  personalty,  but  if 
not  bequeathed  it  goes  to  the  heir.  Aubin  v.  Daly,  4  B.  &  Aid.  59. 
Shares  of  stock  in  a  corporation,  though  its  property  is  real  estate, 
are  personalty.  They  are  merely  a  right  to  share  in  profits.  Hut- 
chins  v.  State  Bank,  12  Met.  42f;  Slaymaker  v.  Bank,  10  Barr,  373. 

II.     ACQUISITION. 
a.    By  Operation  of  Law. 

2.  Name  and  describe  the  principal  titles  acquired  by  opera- 
tion of  law. 

By  marriage,  by  judicial  decree,  by  the  Statute  of  Limitations, 
and  by  occupancy. 

On  marriage,  at  common  law,  the  title  to  all  the  wife's  choses  in 
possession  vested  immediately  and  absolutely  in  the  husband.  Her 
choses  in  action  he  could  reduce  to  possession  if  he  wished,  and  if 
he  exercised  the  right  they  also  became  his  absolutely.  The  wife 
gained  no>  right  at  all  to  her  husband's  chattels,  but  she  owned 
her  clothing  and  ornaments  purchased  for  her  use,  called  parapher- 
nalia. 2  Bl.  Com.  433-436;  Schouler  on  Pers.  Prop.  113. 

The  respective  rights  of  husband  and  wife  as  the  law  now  stands 
can  only  be  ascertained  after  a  study  of  the  statutes  of  the  State 
where  the  question  arises. 

*  Under  this  head  only  those  topics  relating  to  personal  property  are  treated  which  are 
not  touched  upon  in  the  sections  on  Torts.  Real  Property  (the  latter  including  various 
Incidents  of  chattels  real  and  the  subject  of  Wills  and  Administration),  Sales,  etc. 

293 


294  QUESTIONS  AND  ANSWERS.  ' 

Title  by  judicial  decree  includes  several  subdivisions;  (a)  A 
judgment  in  trespass  or  trover  against  one  wrongfully  in  possession 
of  a  chattel,  while  it  vests  a  right  to  damages  in  the  plaintiff, 
also  vests  a  title  to  the  thing  itself  in  the  defendant,  because  no 
second  action  can  be  brought.  2  Bl.  Com.  436,  and  note  (Shars- 
wood);  Smith  v.  Smith,  51  N.  H.  571.  (b)  The  title  gained  by  a 
purchaser  at  a  sheriff's  sale  on  execution  conies  under  this  head. 
The  purchaser  gets  only  whatever  title  the  judgment  debtor  had. 
Griffith  v.  Fowler,  18  Yt.  390.  (c)  Title  of  an  assignee  in  an  invol- 
untary bankruptcy  obviously  belongs  in  the  same  category. 

Title  by  adverse  holding  for  a  period  of  time,  the  length  of  which 
is  regulated  by  statute  in  each  State,  is  similar  to  title  gained  in  the 
same  way  to  real  estate.  See  Real  Property,  Ques.  14  and  15.  The 
title  once  gained  is  perfect  and  good  against  all  the  world,  and  this 
applies  both  to  the  chattel  and  its  increase  produced  during  the 
adverse  possession.  Bryan  v.  AVeems,  29  Ala.  423  (slaves);  Chapin 
v.  Freeland,  142  Mass.  383. 

Title  by  occupancy  is  the  title  by  which  one  owns  that  which,  at 
the  time  it  was  acquired,  was  owned  by  no  one.  Animals  ferae 
naturae  are  held  by  this  title.  Property  in  them  lasts  only  while 
they  are  within  the  power  or  control  of  the  party  taking  them. 
Young  v.  Hichens,  6  Q.  B.  606;  Buster  v.  Newkirk,"20  Johns.  75. 

b.     By  Act  of  the  Parties. 

3.  What  are  the  principal  titles  of  this  general  description? 
Title  by  sale,  by  gift,  by  accession  or  confusion,  and  by  bequest. 

Sale  is  considered  under  other  heads,  and  title  by  bequest  or 
intestacy  under  Wills.  See  Questions  on  Real  Property,  Xos. 
4),  ff. 

To  make  a  gift  complete,  it  must  be  by  deed,  or  there  must  be  a 
deliver}",  actual  or  symbolical.  Cochrane  v.  Moore,  25  Q,  B.  Div. 
57;  Noble  v.  Smith,  2  Johns.  52  (leading  American  case).  A  donatio 
causa  mortis  is  a  gift  made  by  a  donor  in  expectation  of  death,  to 
hold  good  if  he  dies  of  that  illness,  and  to  be  void  if  he  recovers. 
Delivery  has  always  been  essential  to  this.  Ward  v.  Turner,  2  Yes. 
Sr.  431;  Noble  v.  Smith,  supra. 

4.  Accession.    A.  cut  saplings  on  B.'s  land,  without  knowing 
he  was  over  the  boundary  between  his  land  and  B.'s,  and  by  his 
labor  turned  them  into  barrel  hoops.     While  standing,  the  wood 
was  worth  $25,  as  barrel  hoops,  $800.     B.   brought  replevin. 
What  is  the  proper  decision  ? 

B.  cannot  retake  them.  For  although,  as  a  rule,  one  who  takes 
another's  goods  has  no  right  to  hold  them  and  cannot  pass  any 
title  to  a  third  person,  in  this  case  the  property  cannot  be  reclaimed 
by  the  original  owner,  because  the  taker  has  immenselv  increased  its 
value  by  expending  his  labor  and  skill  upon  it.  The  measure  of 


PROPERTY;  PERSONAL.  295 

damages  is  that  of  compensation  for  the  wood  as  it  was  when  taken. 
Wetherbee  v.  Green,  22  Mich.  311;  s.  c.,  7  Am.  Rep.  653;  Herdic  v. 
Green,  55  Penn.  St.  176;  s.  c.,  93  Am.  Dec.  739. 

In  the  case  supposed,  the  taking  was  innocent.  The  rule,  when 
the  trespass  was  wilful,  probably  is  that  no  amount  of  labor  by 
the  wrongdoer  will  prevent  the  original  owner  from  reclaiming  the 
goods  or  their  value  as  thus  enhanced.  Silsbury  v.  McCoon, 
3  Comst.  379,  overruling  4  Denio,  425.  By  this  rule,  the 
principle  which  in  civil  suits  gives  compensation  only,  is  disre- 
garded for  the  sake  of  punishing  the  offender,  but  it  is  apparently 
well  settled.  Livingstone  v.  Rawyards  Coal  Co.,  5  App.  Cas.  25,  39; 
Wooden  Ware  Co.  v.  United  States,  106  U.  S.  432;  Ry.  Co.  v. 
Hutchins,  32  Ohio  St.  571. 

5.  Confusion.    A.  and  B.  owned  a  cargo  of  cotton.     The  ves- 
sel was  wrecked,  and  on  the  bales  which  were  saved  the  distin- 
guishing marks  of  ownership  were  obliterated.     To  whom  would 
they  belong? 

They  would  be  divided  between  A.  and  B.  in  the  proportion  in 
which  they  contributed  to  the  original  cargo,  because  the  mingling 
was  accidental.  Spence  v.  Ins.  Co.,  L.  R.  3  C.  P.  427. 

The  title  to  goods  intermingled  so  that  those  belonging  to  dif- 
ferent persons  cannot  be  distinguished  depends  upon  how  they 
came  to  be  mixed.  If  the  mixing  was  lawful  or  accidental  each 
takes  in  proportion  to  his  contribution;  and  even  if  tortious,  the 
rule  is  the  same,  if  the  goods  are  of  uniform  quality.  Hesseltine 
v.  Stockwell,  30  Me.  237;  Ryder  v.  Hathaway,  21  Pick.  298. 

If  the  mixing  is  tortious  and  the  goods  of  unequal  value,  the 
injured  party  can  take  with  a  free  hand;  Fuller  v.  Paige,  26  111. 
358;  Smith  v.  Morrill,  56  Me.  566;  and,  perhaps,  hold  all.  See 
Ryder  v.  Hathaway,  supra. 

III.     POSSESSION. 

a.     Judicial  Process. 

6.  A.  and  B.  owned,  in  common,  a  chattel,  which  was  seized  by 
a  sheriff  on  execution  against  A.  and  sold  entire,  the  purchase 
money  being  handed  to  the  judgment  creditor.    For  ivhat  is  the 
sheriff  liable  to  B.  ? 

He  is  liable  to  him  in  either  trespass  or  trover,  for,  although  he 
was  justified  in  taking  possession  in  the  beginning,  he  only  had  a 
right  to  dispose  of  A.'s  interest.  By  his  abuse  of  this  right  he 
became  a  trespasser  ab  initio.  Melville  v.  Brown,  15  Mass.  82. 
The  trespass  takes  effect  from  the  beginning,  because  he  acted  by 
authority  of  the  law,  which  B.  could  not  resist,  and  which  must, 
therefore,  be  strictly  pursued.  The  Six  Carpenters  Case,  8  Co.  290; 
s.  c.,  1  Smith's  L.  C.  216. 


296  QUESTIONS  AND  ANSWERS. 

A  sheriff,  however,  so  long  as  he  keeps  within  the  bounds  of  his 
authority,  can  hold  possession,  and  enforce  his  right  by  the  possess- 
ory actions  against  anyone  interfering  with  it.  Casher  v.  Peterson,. 
4  N.  J.  317;  Whitney  v.  Ladd,  10  Vt.  165  (where  property  held 
jointly  and  attached  on  a  claim  against  one  co-owner  was  protected 
from  seizure  by  the  other). 

b.     Bailment. 

7.  When  does  a  bailee  have  a  right  to  retain  goods  to  enforce 
payment  for  his  services? 

A  bailee  has  a  lien  (1)  when  by  law  he  is  compelled  to  take  the 
goods,  e.  g.,  a  common  carrier;  Skinner  v.  Upshaw,  2  Ld.  Raym. 
752;  (2)  by  mercantile  custom;  Vail  v.  Durant,  7  Allen,  408;  s.  c., 
83  Am.  Dec.  695  (factor);  (3)  by  labor  done,  enhancing  the  value 
of  the  article;  Morgan  v.  Congdon,  4  N".  Y.  552;  and  (4)  by  statutes 
which  have  generally  given  a  lien  for  such  services  as  those  of  a 
livervman  or  an  agistor.  See  note,  13  Am.  &  Eng.  Ency.  of  Law 
(1st  ed.),  945. 

If  a  future  time  for  payment  is  fixed  no  lien  can  attach,  for  such 
an  understanding  is  inconsistent  with  a  lien  and  destroys  it.  Chase 
v.  Westmore,  5  M.  &  S.  180;  Wiles,  etc.,.  Co.  v.  Hahlo,  105  N.  Y. 
234;  s.  c.,  59  Am.  Rep.  496. 

8.  What  are  the  advantages  and  disadvantages  incident  to 
holding  by  a  lien? 

The  advantage  is  that  the  owner  will  probably  be  induced  to- 
pay  what  is  due  for  the  sake  of  getting  his  goods. 

The  cLief  disadvantage  arises  from  the  fact  that  a  (specific)  lien 
is  divested  if  possession  is  given  up;  Mulliner  v  Florence,  3  Q.  B. 
Div.  484;  1  Jones  on  Liens,  §  20;  and  is  this:  that  any  expense  in- 
curred in  keeping  the  property  must  be  borne  by  the  bailee.  Brit- 
ish, etc.,  Co.  v.  Somes,  E.  B.  &  E.  353;  aff'd,  8  H.,  L.  Gas.  338;  1 
Jones  on  Liens,  §  972.  Moreover,  at  common  law  the  property 
could  not  be  sold  to  pay  the  charges.  1  Jones  on  Liens,  §  335; 
Briggs  v.  R.  R.  Co.,  6  Allen,  246.  But  statutes  have  been  adopted 
almost  universally,  providing  for  a  sale  after  a  certain  length  of 
time  and  after  notice. 


9.  X.  steals  Y.'s  horse,  rides  him  to  an  inn,  runs  up  a 
nnd  leaves  without  paying  it.     Can  the  innkeeper  hold  the  horse 
against  Y.  for  this  indebtedness? 

It  depends  on  whether  the  landlord  received  the  horse  as  the 
property  of  X.  He  is  compelled  to  receive  the  goods  of  any  trav- 
eler and  to  become  liable  for  them,  and  the  protection  of  the 
lien,  even  against  the  true  owner,  has  been  accorded  to  him  since 
very  early  times.  Robinson  v.  Walter,  3  Bulst.  269  (1616);  Thre- 
falf  v.  Berwick,  L.  R.  7  Q.  B.  711;  1  Jones  on  Liens,  499. 


PROPERTY;  PERSONAL.  297 

The  same  privilege  is  not  accorded  to  a  carrier,  in  this  country  at 
least.  It  is  said  that  he  can  tell  in  advance  the  amount  of  his  charge 
and  should  insist  upon  his  right  to  prepayment:  that  it  is  for  the  benefit 
of  an  owner  that  his  horse  should  be  fed,  but  very  likely  none  at 
all  that  his  goods  should  be  transported;  and  that  there  is  no  obligation 
on  the  carrier  to  take  goods  for  anyone  but  the  owner.  Fitch  v.  New- 
berry,  1  Doug.  (Mich.)  1;  Robinson  v.  Baker,  5  Gush.  137. 

10.  What  is  the  difference  between  a  specific  and  a  general 
lien? 

A  particular  or  specific  lien  is  one  which  "  attaches  to  specific 
property,  as  security  for  some  demand  which  the  creditor  has  in 
respect  to  that  property."  1  Jones  on  Liens,  §  14.  This  is  the 
common  kind  and  is  favored  by  the  courts. 

A  general  lien  is  less  frequently  allowed  and  is  not  favored.  It 
holds  property  as  security  for  obligations  from  the  owner  which  do 
not  necessarily  arise  from  any  demand  the  creditor  may  have  in 
respect  to  that  property;  "  it  is  for  a  general  balance  of  accounts." 
The  most  conspicuous  example  of  such  a  lien  is  that  of  a  factor. 
See  1  Jones  on  Liens,  §  17. 

11.  Define  a  pledge. 

A  pledge  of  property  holds  a  position  between  a  lien  and  a  chat- 
tel mortgage.  The  title  does  not  pass  to  the  pledgee  as  it  does  to 
a  mortgagee;  but,  on  the  other  hand,  the  pledgee  has  more  ex- 
tensive rights  and  a  more  advantageous  position  than  one  holding 
by  a  lien.  "A  deposit  of  goods  is  made  a  security  for  a  debt,  and 
the  right  to  the  property  vests  in  the  pledgee  so  far  as  is  necessary 
to  secure  the  debt."  Halliday  v.  Holgate,  L.  E.  3  Ex.  299;  Wood 
v.  Dudley,  8  Vt.  430. 

On  default  of  payment  of  the  debt,  it  is  well  settled  that  the 
pledgee  may  sell  the  property  "  without  a,  judicial  process  and  de- 
cree of  foreclosure,  upon  giving  the  debtor  reasonable  notice  to 
redeem,"  and  may  thereby  pass  a  good  title.  Parker  v.  Brancher, 
22  Pick.  40,  46;  Stearns  v.  Marsh,  4  Denio,  227. 


PROPERTY;  REAL. 


I.    TENURE  AND  ESTATES. 

1.  What  was  the  feudal  system? 

It  was  the  system  of  holding  land  prevailing  in  England  from 
the  Norman  Conquest  (1066)  until  the  Bestoration  (1660).  By 
it,  the  king  owned  all  the  land.  He  granted  the  use  (called  a  feud 
or  fee)  of  portions  of  the  land  to  various  subjects,  who  held  at  first 
at  will,  later  for  life,  and  finally  by  an  estate  of  inheritance,  and 
who  paid  to  the  Crown  services,  military  at  first,  but  made  pe- 
cuniary later.  These  men  parceled  out  what  they  had  to  others, 
who  in  turn  owed  services  to  them;  and,  as  the  estate  became 
hereditary,  other  burdens,  such  as  payments  by  the  tenant  on  com- 
ing into  his  inheritance,  or  on  carriage  of  his  daughter,  were  added. 

This  granting  out  of  the  lands  to  subordinate  holders  (known  as 
subinfeudation)  went  so  far  that  the  lords  found  great  difficulty 
in  enforcing  the  feudal  duties  owed  them.  To  correct  the  evil,  the 
Statute  of  Quid  Emptores  (1290)  was  passed,  providing  that  when 
land  was  granted  away  by  a  tenant,  the  one  receiving  it  should  owe 
his  duties  to  the  lord  of  the  tenant  and  not  to  the  grantor  himself. 
At  the  Restoration,  Charles  II  was  forced  to  give  the  final  blow  to 
the  burdensome  system.  Almost  all  tenures  were  reduced  to  free 
and  common  socage,  i.  e.,  a  tenure  for  a  fixed,  money  payment,  in 
stead  of  an  uncertain  amount  of  services  or  work.  See  Tiedeman  on 
Eeal  Property,  §  20;  1  Wash-burn  on  Heal  Property,  bk.  1,  chap.  2. 

2.  By  what  tenure  is  land  held  in  the  United  States? 
Practically  all  the  land  is  owned  allodially,  i.  e.,  absolutely.     But 

there  still  remains  the  right  of  escheat  to  the  State  when  a  man 
dies  without  heirs;  and,  of  course,  the  State  has  the  right  to  take  by 
eminent  domain  lands  needed  for  public  uses.  Tiedeman  on  Real 
Property,  §  25.  And  see  1  Weshburn  on  Real  Property,  pp.  63-67. 

3.  Define  "  freehold,"  and  draw  up  a  table  of  estates,  based 
on  the  quantity  of  interest. 

"A  freehold  is  an  estate  which  is  to  endure  for  an  uncertain 
period,  and  which  must,  or  at  least  may,  last  through  the  lifetime 

*  References  to  Tiedeman  on  Real  Property  are  to  the  first  edition,  and  to  Washbunx 
on  Real  Property  to  the  fourth  edition. 

298 


PROPERTY;  REAL. 


299 


of  some  person."     Tiedeman.  §  26.     It  is  a  life  estate  or  any  greater 
one. 


(  1 .  Freeholds  of  inheritance 


Estates  of  freehold. 


I  Fee-simple. 
( Fee-tail. 


fBy  operation 
of  law « 


8.  Freeholds  not  of  Inheritance 
i.  e.,  for  life 


Estates  lesa  than  freehold. 


(a.  Dower. 
1  6.  Curtesy. 

c.  Fee  tail  after 
possibility  of 
issue  extinct. 

d .  Estate  for  an 
uncert  ain 
period  which 
may  last  for 
a  life. 


fa.   Life   of  per- 
|       son  himself. 
By  act  of  the 

parties •{  6.  Life   of     an- 
other,     (per 
I,      outre  vie). 


II.  Lease  for  years. 
K.  Lease  at  will. 
3.  Estate  by  sufferance. 


4.  Define  the  freeholds  of  inheritance. 

"  Tenant  in  fee-simple  is  he  which  hath  lands  or  tenements  to 
hold  to  him  and  his  heirs  forever."  Lit.,  §  1.  "  Tenancy  in  fee- 
simple  is  the  highest  estate  known  to  the  law  and  is  absolute." 
Tiedeman  on  Real  Property,  §  36. 

An  estate-tail  is  to  a  man  and  some  class  of  his  heirs,  such  as  his 
heirs  male  of  his  body,  or  his  heirs  by  a  certain  wife.  Tiedeman, 
§  43.  For  estates  tail  in  United  States,  see  Tiedeman,  §  52. 


5.  Define  the  freeholds  not  of  inheritance. 

Dower  is  the  right  of  a  wife  to  the  life  enjoyment,  after  the 
husband's  decease,  of  one-third  of  any  estate  of  inheritance,  of 
which  the  husband  was  seized  at  any  time  during  the  coverture, 
provided  it  was  such  an  estate  that  her  issue,  had  she  had  any, 
could  have  inherited  it.  Williams  on  Real  Property  (13th  ed.), 
235;  Tiedeman  on  Real  Property,  §  115. 

Curtesy  is  the  corresponding  right  of  a  husband  in  all  the 
estates  of  inheritance  of  his  wife,  with  the  added  requirement  that 
issue  capable  of  inheriting  the  property  must  have  been  born  alive. 
Tiedeman,  §  101;  1  Bouvier's  Law  Diet.,  p.  416. 

Fee-tail  after  possibility  of  issue  extinct  is  illustrated  by  this 
case: —  Estate  to  A.  and  his  heirs  had  by  wife  B.  B.  dies  without 
issue  had;  A.  has  the  estate  in  question. 


390  QUESTIONS  AND  ANSWERS. 

An  example  of  an  estate,  which  is  a  life  estate  because  it  may 
last  for  a  lifetime,  is  one  to  A.,  so  long  as  X.  remains  unmarried. 
See  Tiedeman  on  Real  Property,  §  60 

6.  Define  the  estates  less  than  freehold. 

An  estate  for  years  is  one  for  any  definite  period  of  time.  It* 
duration  is  ascertainable.  1  Wash-burn  on  lleal  Property,  p.  436 
(4th  ed.). 

After  a  contract  for  a  lease,  but  before  entry  by  the  lessee,  he  has- 
no  estate  in  the  land;  what  ha  has  is  a  right  of  entry  (which  is  as- 
signable), called  an  interesse  termini.  Tiedeman  on  Real  Property, 
§  1^4. 

Estates  at  will  are,  as  their  name  implies,  leases  by  one  to  another, 
determinable  at  any  time,  by  either  party.  The  lessee  has  no  in- 
terest which  can  be  assigned.  Lit.,  §  68;  Tiedeman  on  Eeal  Prop- 
erty, §  212. 

A  tenant  at  sufferance  is  one  who  comes  in  rightfully,  but  holds- 
over  without  right,  such  as  tenant  per  autre  vie,  holding  after 
the  end  of  the  life  on  which  his  estate  depended.  Co.  Lit.  57,  b; 
Tiedeman  on  Real  Property,  §§  225,  226. 

7.  State  the  difference  between  a  reversion  and  a  remainder; 
and  between  a  vested  and  a  contingent  remainder. 

A  reversion  is  that  remnant  of  an  estate  which  remains  in  a 
person  after  he  has  transferred  to  another  some  lesser  estate,  such 
as  an  estate  for  years  out  of  a  life  estate,  or  a  life  estate  out  of  a 
fee.  Co.  Lit.  22,  b;  Tiedeman  on  Real  Property,  §  385. 

A  remainder  is  a  future  estate,  created  at  the  same  time  "as. 
another  and  precedent  estate  (known  as  the  particular  estate),  and 
to  be  enjoyed  on  the  termination  of  the  latter.  Co.  Lit.  143,  a; 
Tiedeman  on  Real  Property,  §  396. 

As  to  the  difference  between  a  vested  and  a  contingent  remainder, 
the  statement  by  Leake,  Digest  Land  Law,  48,  is  very  clear.  "  A  re- 
mainder limited  to  an  uncertain  person  or  upon  an  uncertain  condi- 
tion and  so  long  as  the  uncertainty  lasted,  became  known  as  a  con- 
tingent remainder.  A  remainder  limited  absolutely  and  to  a  deter- 
minate person,  or  which  had  become  absolute  and  certain  in  owner- 
ship by  subsequent  events,  was  a  vested  remainder."  Thus,  an  es- 
tate to  A.  for  life,  remainder  to  B.  in  fee,  B.  being  alive,  creates  a 
vested  remainder  in  B.  An  estate  to  A.  for  life,  remainder  to  B.'s- 
eldest  son,  B.  then  having  no  son,  creates  a  contingent  remainder. 
See  2  Washburn  on  Real  Property,  pp.  539-542  (4th  ed.);  4  Kent,. 
Com.  *pp.  202-206;  2  Bl.  Com.,  chap.  11,  pp.  163-171. 

A  contingent  remainder,  if  it  ever  becomes  a  vested  one,  must 
obviously  become  so  during  the  continuance  of  the  particular  estate, 
since  it  is  limited  to  take  effect  immediately  on  the  ending  of  that 
estate.  It  becomes  vested  by  the  remainderman's  coming  into 


PROPERTY;  REAL.  301 

being,  or  by  the  happening  of  the  event  on  which  his  right  depends. 
In  creating  a  contingent  remainder,  the  supporting  or  particular 
estate  must  be  a  freehold,  because  otherwise  the  seisin  would  be  in 
abeyance. 

8.  How  are   estates  classified   according    to    the   number   of 
cwners  ? 

Estates  held  in  severalty  (i.  e.,  by  one  person),  in  coparcenary  (a 
peculiar  estate  no  longer  of  importance),  in  joint-tenancy,  and  in 
common. 

In  joint  tenancy,  the  owners  "  have  one  and  the  same  interest, 
accruing  by  one  and  the  same  conveyance,  commencing  at  one  and 
the  same  time,  and  held  by  one  and  the  same  possession."  Its 
distinguishing  characteristic  is  the  right  of  survivorship.  By  this, 
on  the  death  of  one  joint  tenant,  his  interest  passes  to  the  remain- 
ing ones,  regardless  of  his  heirs  or  devisees,  or  of  claims  to  dower 
or  curtesy.  The  estate  has,  as  a  consequence,  been  done  away 
in  most  States,  except  for  trustees.  Tiedeman  on  Real  Property, 
§§  236-238;  2  Bl.  Com.  180-182. 

Tenants  in  common  hold  by  distinct  titles,  and  each  has  simply 
an  undivided  share.  There  is,  therefore,  no  survivorship;  each 
share  descends  to  heirs  like  an  estate  in  severalty,  and  is  freely 
•devisable.  Tiedeman  on  Real  Property,  §  329;  1  Washburn  on 
Real  Property,  bk.  1,  chap.  13,  §  3. 

9.  Define  seisin  and  livery  of  seisin. 

Seisin  signifies  simply  possession,  under  a  title,  or  at  least  a 
claim,  of  freehold;  one  is  never  "  seized "  of  a  term  for  years. 
Seisin  is  a  question  of  fact.  When  no  one  is  in  possession  of  the 
land,  the  seisin  is  in  the  person  having  the  right  of  property,  and 
is  then  seisin  in  law,  but  this  disappears  as  soon  as  an  actual  pos- 
session begins,  by  one  claiming  a  freehold.  The  seisin,  therefore, 
can  never  be  in  abeyance.  See  Tiedeman  on  Real  Property,  §§  24, 
396;  1  Washburn  on  Real  Property,  p.  58. 

Livery  of  seisin  was  the  term  used  to  describe  the  ceremony  of 
handing  over  the  seisin  from  one  to  another.  The  two  went  on 
the  land  with  witnesses,  and  a  twig  or  piece  of  turf,  sometimes  a 
ring,  was  handed  over  as  a  delivery  of  the  possession.  The  transfer 
took  effect  immediately,  and  this  furnished  one  reason  why  a  free- 
hold could  not  at  common  law  be  created  to  begin  in  futnro. 
Tiedeman  on  Real  Property,  §  770;  2  Bl.  Com.  314-316. 

Whether  the  transferor  had  a  right  to  pass  the  seisin  or  not, 
the  transferee  took  it.  If  someone  else  had  a  superior  right,  he 
was  by  that  act  disseised.  A  disseisin  is,  in  general,  effected  by 
any  open  entry  and  occupation,  under  a  claim  of  a  freehold  right, 
with  the  intention  to  shut  out  the  true  owner,  and  his  actual  ex- 
clusion. In  technical  language,  the  possession  gained  must  be 


302  QUESTIONS  AND  ANSWEES. 

notorious,  exclusive  and  adverse.  The  disseisor  acquires  a  perfect 
title  immediately  against  all  but  the  true  owner,  and  against  him 
also  after  the  running  of  the  Statute  of  Limitations.  Tiedeman 
on  Eeal  Property,  §§  693-700;  3  Washburn  on  Real  Property,  pp. 
125-129. 

II.  ACQUISITION  OF  TITLE  WITHOUT  A  CONVEYANCE. 
a.    Operation  of  Law. 

10.  Enumerate  and  define  the  principal  estates  which  are  ac- 
quired by  the  operation  of  law  purely. 

The  principal  titles  so  acquired  are  those  of  dower,  curtesy, 
escheat  and  accretion. 

Dower  and  curtesy  have  already  been  denned  (Ques.  5,  supra). 
Escheat  is  the  title  by  which  the  State  takes  the  real  estate  of  one 
dying  intestate,  and  without  heirs.  It  is  feudal  in  origin,  and  re- 
versionary in  character.  3  Washburn  on  Real  Property,  pp.  46,  49. 

Title  by  accretion  is  the  title  which  the  owner  of  land  gains  to 
other  land,  gradually  added  thereto  by  the  operation  of  natural 
causes,  such  is  the  ordinary  flow  of  a  river.  Tiedeman  on  Real 
Property,  §§  685,  686;  Deerfield  v.  Arms,  17  Pick.  41;  Cook  v. 
McClure,  58  N.  Y.  437. 

The  time-honored  division  of  titles  into  title  by  descent  and  title  by 
purchase  may  here  be  noticed.  Title  by  descent  is  that  by  which  an 
heir-at-law  holds  the  realty  of  his  deceased  (intestate)  relative;  title  by 
purchase,  includes  practically  all  other  titles,  comprising  even  a  title 
acquired  by  gift.  Opinions  differ  as  to  the  class  to  which  dower  and 
curtesy  belong,  y  Washburn  on  Real  Property,  4,  5. 

The  question  sometimes  arises,  whether  an  heir  to  whom  land  is  de- 
riscd  takes  it  by  descent  or  purchase.  The  test  is  found  in  Clerk  v. 
Smith,  1  Salk.  241,  and  is  this:  Does  he  take  the  same  estate  that  the 
law  would  have  given  him,  if  the  ancestor  had  died  intestate?  If  so, 
he  is  in  by  descent. 

11.  What  are  the  English  canons  of  descent.,  and  how  far 
are  they  of  force  in  the  United  States? 

They  are  the  rules  by  which  the  heirs  were  ascertained  and  the 
descent  of  real  estate  governed,  at  common  law. 

1.  Inheritances  shall  lineally  descend  to  the  issue  of  the  person 
who  last  died   actually  seised,  in  innnitnm,  but  shall  never  lineally 
ascend. 

2.  The  male  issue  shall  be  admitted  before  the  female. 

3.  Where  there  are  two  or  more  males  in  equal  degree,  the  oldest 
only  shall  inherit,  but  the  females  of  equal  degree  all  together. 

4.  The  lineal  descendants,  in  infinitmn,  of  any  person  deceased 
shall  represent  their  ancestor:  that  is,  shall  stand  in  the  same  place 
as  the  person  himself  would  have  done,  had  he  been  living. 


PROPERTY;  REAL.  303 

5.  On  failure  of  lineal  descendants,  or  issue,  of  the  person  last 
seised,  the  inheritance  shall  descend  to  his  collateral  relations, 
being  of  the  blood  of  the  first  purchaser;  subject  to  the  three 
preceding  rules. 

6.  The  collateral  heir  of  the  person  last  seised  must  be  the  next 
collateral  kinsman  of  the  whole  blood. 

7.  In  collateral  inheritances,  the  male  stocks  shall  be  preferred 
to  the  female,  unless  the  lands  have  in  fact  descended  from  a  fe- 
male.    See  3  Washburn  on  Real  Property,  pp.  10-12,  for  explana- 
tion in  detail  of  these  canons. 

In  the  United  States,  though  the  canons  are  applied,  unless 
changed  by  the  Legislature,  there  are  statutory  provisions  every- 
where, which  have  no  uniformity  and  are  constantly  altered.  In 
general,  it  may  be  said,  that  the  first,  second,  third  and  seventh 
canons  are  done  away. 

The  fourth  is  also  done  away,  in  cases  where  all  the  heirs  are  of 
equal  degree.  When  they  are  of  unequal  degree,  the  common-law 
rule  is  applied.  For  example,  A.  has  children  B.  and  C.,  of  whom 
B.  has  two  children,  and  C.  three.  B.  dies.  Then  A.  dies  intestate. 
His  heirs  are  B.'s  children,  and  C.,  and  as  they  are  of  unequal  de- 
gree, the  property  goes  per  stirpes,  i.  e.,  half  to  C.  and  half  to  the 
children  of  B.  If  B.  and  C.  had  both  been  dead  at  A.'s  death,  the 
five  children  would  have  each  taken  one-fifth,  the  division  being 
per  capita. 

Canon  number  5  is  modified  by  a  preference  to  lineal  ances- 
cestors,  if  living,  over  collateral  branches;  number  6  is  not  in 
force,  but  the  changes  in  it  have  not  been  so  sweeping  as  in  the 
others.  See  3  Washburn  on  Real  Property,  pp.  12-16,  and  his 
summary  of  the.  statutes  in  the  various  States,  p.  21. 

12.  What  was  the  common-law  method  used  in  computing  the 
degree  of  relationship  between  two  persons,  for  determining  the 
descent  of  real  estate?    Is  it  in  force? 

The  degree  was  obtained  at  common  law  by  counting  the  genera- 
tions from  the  common  ancestor  to  that  one  of  the  persons  in  ques- 
tion who  was  farthest  from  him.  Thus  an  uncle  and  nephew  were 
related  in  the  second  degree,  the  common  ancestor  being  the  grand- 
father of  the  nephew. 

At  present,  in  this  country,  the  civil-law  rule,  which  has  always 
been  followed  for  finding  the  "  next  of  kin,"  i.  e.,  the  distributees 
of  the  personalty  of  an  intestate,  prevails.  This  consists  in  adding 
together  the  number  of  degrees  between  each  of  the  two  persons 
and  the  common  ancestor.  An  uncle  and  nephew  under  this  cal- 
culation are  related  in  the  third  degree.  3  Washburn  on  Real  Prop- 
erty, p.  10. 

13.  How  may  a  right  of  dower  be  lost  or  barred? 

The  statutes  of  the  respecti.ve  States  must  be  examined  for  de- 
tails, but  the  following  are  the  leading  ways  in  which  a  dower  right 


304  QUESTIONS  AXD  ANSWERS. 

disappears:  (1)  by  elopement,  unless  condoned  by  the  husband;  (2) 
by  the  wife's  joining  the  husband  in  his  transfers  of  land;  (3)  by  a 
provision  in  lieu  of  dower,  either  by  jointure  in  the  husband's  life- 
time, or  by  the  husband's  will.  In  the  last  case,  the  widow  has  an 
election  between  the  provision  by  will  and  her  ordinary  dower 
rights.  Tiedeman  on  Keal  Property,  §§  127, 128, 147,  148. 

b.   By  Operation  of  Law,  Against  the  Will  of  the  Former  Owner. 

14.  Name  and  define  briefly  the  titles  so  gained  against  the 
will  of  the  previous  owner. 

The  principal  titles  so  acquired  are  those  by  eminent  domain, 
taxation,  execution,  bankruptcy,  liens,  and  lapse  of  time.  Eminent 
domain  and  taxation  are  sufficiently  treated  under  another  head 
(Constitutional  Law);  execution  and  bankruptcy  explain  them- 
selves; a  lien  upon  land  "  does  not  imply  an  estate  in  it,  but  a  mere 
right  to  have  it,  in  some  form,  applied  towards  satisfying  a  claim 
upon  it."  2  Washburn  on  Real  Property,  p.  34.  A  lien  is,  there- 
fore, not  strictly  a  source  of  title. 

Titles  by  lapse  of  time  are  two:  (1)  Title  to  corporeal  real  es- 
tate, gained  by  a  holding  adverse  to  the  real  owner  for  a  pre- 
scribed number  of  years,  the  essentials  of  which  have  already  been 
noted  (under  disseisin,  Ques.  9,  supra).  3  Washburn  on  Real  Prop- 
erty, pp.  125-129,  134-138,  141.  (The  Statutes  of  Limitation  vary 
widely  in  the  different  States,  the  time  required  ranging  from  five 
to  twenty-one  3rears;  3  Washburn  on  Real  Property,  166,  note); 
(2)  Title  by  prescription,  which  corresponds  to  that  by  the  Statute 
of  Limitations,  but  arises  from  the  user,  for  a  stated  time,  of  an 
incorporeal  hereditament. 

Originally,  it  was  necessary  in  order  to  gain  a  title  by  prescription 
to  prove  that  the  right  had  been  enjoyed  from  the  time  of  legal  memory 
(i.  e.  Richard  1),  but  the  impossibility  of  .such  proof  sioon  compelled  a 
change.  The  courts  adopted  the  doctrine  that  a  lost  grant  would  be 
presumed  from  an  exercise  of  the  right  after  a  period  of  years.  At 
present,  the  rule  is  that  this  presumption  becomes  conclusive  after 
the  lapse  of  the  same  number  of  years  which  bars  an  action  to  re- 
cover corporeal  real  property;  thus  achieving  the  desirable  result  of 
uniformity  in  the  acquisition  of  all  titles  by  lapse  of  time.  Tiedeman  on 
Real  Property,  §  599,  note;  Tracy  v.  Atherton,  36  Vt.  503;  Wallace  v. 
Fletcher,  30  N.  H.  434.  Traces  of  the  old  theory  of  the  lost  grant  still 
appear  in  some  States.  Lamb  v.  Crosland,  4  Rich.  (S.  Car.)  536;  Parker 
v.  Foote,  10  Wend.  309,  (dictum). 


15.  It  has  been  sometimes  urged  that  the  operation  of  the 
Statute  of  Limitations  was  simply  to  bar  the  remedy  of  the 
person  shut  out  of  his  land,  and  that,  consequently,  even  after 


PROPERTY;  REAL.  305 

the  statutory  period  had  elapsed,  a  relinquishment  or  abandon- 
ment by  the  wrongdoer  would  restore  the  former  rights  of  the 
previous  owner.  Is  this  position  tenable? 

No.  The  title  is  as  completely  gone  as  if  there  had  been  an  express 
deed  to  the  adverse  holder.  The  great  object  of  the  statute  was 
to  put  a  stop  to  litigation  based  on  rights  arising  far  in  the  past,  and 
the  construction  claimed  would  go  to  frustrate  that  purpose.  The 
former  owner  is  a  "  stranger,"  after  the  statute  has  run.  School 
District  v.  Benson,  31  Me.  381;  Hughes  v.  Graves,  39  Vt.  359. 

16.  Would  the  statute  begin  to  run  in  either  of  the  following 
cases:    (1)  A  lessee  for  years  determines  to  hold  adversely  to  his 
lessor,  and  does  various  acts  indicating  this  intention;    (2)  A. 
puts  up  a  fence  on  what  he  honestly  thinks  is  the  line  between 
his  land  and  that  of  B.,  and  treats  the  land  so  inclosed  as  his 
own;  in  fact,  he  has  included  some  land  belonging  to  B.  f 

In  (1),  the  answer  depends  on  whether  the  acts  in  disafnrmance 
of  the  lessor's  title  are  brought  clearly  to  his  knowledge.  If  they 
are  positive  acts,  like  a  refusal  to  pay  rent,  and  are  clearly  brought 
home  to  the  lessor,  the  statute,  by  the  great  weight  of  authority, 
will  begin  to  run  in  favor  of  the  lessee.  Willison  v.  Watkins,  9 
Pet.  48;  Sherman  v.  Trans.  Co.,  31  Vt.  162,  177.  Contra,  De 
!Uncey  v.  Ga  Xun,  9  N.  Y.  9. 

As  to  (2),  there  is  the  same  weight  of  authority  that  A.  will  have 
the  benefit  of  the  statute.  In  a  leading  case  it  is  admitted  that  the 
intention  of  the  possessor  to  enter  and  claim  adversely  is  neces- 
sary, but  it  is  held  that  "  the  person  who  enters  on  land,  believing 
and 'claiming  it  to  be  his  own,  docs  thus  enter  and  possess."  The 
fact  that  he  is  not  morally  in  the  wrong  should  not  put  him 
in  a  worse  position  than  an  intentional  wrongdoer.  Indeed,  the 
motive  is  immaterial.  French  v.  Pearce,  8  Conn.  439;  Yetzger  v. 
Thomas,  17  Ohio  St.  130.  Contra,  Grube  v.  Wells,  34  Iowa,  148. 

17.  A.  took  possession  of  part  of  a  tract  of  land,  having  a 
paper  title  to  the  whole  tract.     His  deed  was  not  good,  but  he 
held  the  part  he  first  occupied  for  the  full  statutory  period,  with 
a  claim  of  right  to  the  whole.    To  how  much  did  he  gain  title  by 
adverse  possession  ? 

To  the  whole  tract,  under  the  doctrine,  of  constructive  possession. 
The  doctrine,  though  well  settled,  is  peculiar  to  this  country,  and 
perhaps  arose  from  the  existence  of  woodland,  connected  with  farms, 
but  seldom  used.  There  must  be  a  deed  accurately  describing  the 
whole  of  the  premises,  and  the  tract  must  be  of  moderate  extent; 
that  is,  the  origin  of  the  rule  requires  its  application  to  be  made 
with  reasonable  limitations.  Jackson  v.  Woodruff,  1  Cow.  276; 
Bailey  v.  Carleton,  12  N.  H.  9. 
20 


306  QUESTIONS  AND  ANSWERS. 

18.  Disabilities.     A.  is  a  woman  who  is  disseised  at  six  years 
of  age,  married  at  eighteen,  becomes  a  widow  at  forty.    A  statute 
gives  a  disseisee  fifteen  years  to  assert  his  right,  and  if  he  is 
under  a  disability,  such  as  infancy  or  coverture,  at  the  time  the 
right  of  entry  first  accrued,  gives  five  years  in  addition  after 
the  removal  of  such  disability.     Can  A.,  when  discovert,  bring 
suit  to  eject  the  disseisor? 

No.  The  only  disability  of  which  she  could  take  advantage  was 
the  one  arising  from  her  infancy.  This  is  because  that  was  the 
only  one  existing  at  the  time  the  disseisin  occurred,  ^o  disability 
arising  after  that  time  can  affect  the  case.  Bunce  v.  AVolcott,  2 
Conn.  27;  Eager  v.  Commonwealth,  4  Mass.  182. 

19.  A  statute  provides  that  adverse  possession,  to  gain  title, 
must  continue  fifteen  years.     A.,  the  owner  of  land,  is  disseised 
by  B.,  who  holds  for  ten  years,  when  he  is,  in  turn,  thrust  out  by 
C.,  who  holds  five  years.    Does  C.  gain  a  good  title  as  aaainst  A.  ? 

In  other  words,  can  successive  disseisors  tack  their  holdings  to- 
gether to  make  up  the  requisite  time? 

The  cases  are  in  conflict.  It  is  on  all  hands  admitted  that 
any  "  privity  of  estate,"  between  the  successive  holders,  i.  e.,  any 
transfer  from  the  prior  wrongdoer  to  his  successor  by  descent,  de- 
vise or  grant,  will  suffice  to  give  the  successor  the  advantage  of  the 
time  during  which  his  predecessor  held  adversely.  Sawyer  v.  Ken- 
dal,  10  Cush.  241;  Overfield  v.  Christie,  7  S.  &  R.  173. 

AVhen,  however,  the  case  suggested  in  the  question  has  come 
up,  the  decisions  have  been  diverse.  In  Massachusetts,  separate 
successive  disseisins  are  not  allowed  to  be  tacked.  Sawyer  v.  Ken- 
dal,  supra.  But  in  other  States,  following  the  spirit  of  the  statute, 
which  was  to  quiet  titles  and  cut  off  the  rights  of  persons  dilatory 
in  enforcing  them,  the  opposite  conclusion  has  been  reached,  a 
necessary  qualification  being  added,  that  there  must  be  no  interval 
between  the  holdings  of  the  two  wrongdoers.  Fanning  v.  Wilcox, 
3  Day  (Conn.),  258;  Shannon  v.  Kinny,  1  A.  K.  Marsh,  3. 

III.  TITLE  BY  VOLUNTABY  CONVEYANCE,  INTER  Vivos. 

a.     Form  of  Conveyance. 

20.  What  were  the  conveyances  known  to  the  common  law? 

To  follow  Blackstone's  well-known  summary,  dividing  them  into 
primary  conveyances,  or  those  transferring  some  estate  to  one  hav- 
ing no  other  interest  in  the  property,  and  secondary,  in  which  an 
estate  previously  created  is  modified  or  extinguished,  they  are  these: 
Primary,  (1)  feoffment;  (2)  gift;  (3)  grant;  (4)  lease;  (:>)  exchange; 
(6)  partition.  Secondary,  (1)  release:  (2)  confirmation:  (3)  sur- 
render; (4)  assignment;  (5)  defeasance.  2  Bl.  Com.  309,  310. 


PROPERTY;  REAI* 

In  all  transfers  of  a  freehold  estate  (in  possession)  in.  corporeal 
real  property,  the  ceremony  of  livery  of  seisi,n  (Ques  9,  supra),  was 
an  essential  part;  the  transfer  was  either  a  feoffment,  creating  a  fee; 
a  gift,  creating  a  fee  tail;  or  a  lease  for  life;  according  to  the  words 
used  at  the  ceremony.  Tiedeman  on  Eeal  Property,  §§  769,  770. 

This  transfer  by  livery  of  seisin  is  the  only  method  of  primary 
common-law  conveyance  capable  of  creating  a  freehold  or  of  trans- 
ferring a  freehold  in  possession,  and  in  this  lies  the  reason  that 
freeholds  could  not  be  made  to  commence  in  futuro  at  common 
law.  Tiedeman,  supra. 

Grant  was  a  transfer  by  deed,  and  was  used  to  convey  corporeal 
freehold  interests  when  livery  of  seisin  was  impossible  from  lack  of 
possession  (e.  g.,  in  conveying  a  remainder),  and  to  convey  any 
interest  in  incorporeal  hereditaments.  The  rule  was  that  what- 
ever could  be  conveyed  by  livery,  must  be;  and  all  realty  which 
was  transferable  in  that  way  was  said  to  lie  in  livery;  all  other 
hereditaments  lay  in  grant.  Tiedeman,  supra,  §  771;  3  Washburn 
on  Eeal  Property,  352. 

The  term  lease  was  applied  to  estates  for  life  as  well  as  for  a 
fixed  period  of  years.  A  term  for  years  was  transferred  by  a  parol 
agreement,  and  entry.  Before  entry  the  lessee  had  only  an  intcrcsse 
termini.  Tiedeman  on  Keal  Property,  §  772  (Ques.  6,  supra). 

A  release  is  a  conveyance  of  one's  estate  in  lands  to  another  who 
holds  already  some  estate  in  possession,  as  by  a  reversioner  to  a  life 
tenant  where  there  is  no  outstanding  intermediate  estate,  or  by  one 
joint  tenant  to  another.  Except  between  two  tenants  in  common 
the  transfer  is  by  deed,  livery  of  seisin  not  being  used  because  the 
grantee's  actual  possession,  even  that  of  a  tenant  for  years,  was 
considered  to  render  that  ceremony  unnecessary.  Tiedeman  on 
Eeal  Property,  §  773:  2  Bl.  Com.  324,  325.* 

Surrender  is  the  converse  of  release,  namely,  a  transfer  by  one  in 
possession  of  a  particular  estate  to  one  holding  an  immediate  re- 
version or  remainder,  e.  g.,  when  there  is  an  estate  to  A.  for  life, 
remainder  to  B.  for  life,  remainder  to  C.  in  fee,  A.  can  surrender  to 
B.,  because  B.'s  remainder  is  immediate  to  A.'s  estate.  A.,  however, 
bv  the  operation  of  these  rules,  cannot  make  a  surrender  to  C.,  but 
would  convey  to  him  by  livery.  Tiedeman  on  Eeal  Property,  §  773. 

The  other  forms  of  transfer  named  above  need  not  be  considered 
here  in  detail. 


21.  What  is  a  surrender  ly  operation  of  law? 

When  a  lessor  and  lessee  perform  acts  which  indicate  an  intention 
to  abandon  the  lease,  a  surrender  by  operation  of  law  takes  place, 
and  the  lease  is  terminated.  The  most  common  ways  in  which  such 

*  The  chief  importance  of  release  in  this  country  is  in  its  descendant,  the  familiar  quit- 
claim deed,  the  status  of  which  is  set  for^h  in  Tiedeman.  §  781.  and  3  Washburn  on  Real 
Property,  p.  359.  In  general,  it  may  Vie  said  that  the  quitclaim  is  recognized  as  a  primary 
conveyance,  and  will  pass  the  whole  interest  which  the  grantor  was  at  the  time  capable 
of  transferring. 


308  QUESTIONS  AND  ANSWERS. 

a  surrender  takes  place  are  (1)  a  new  lease  between  the  parties,  the 
enjoyment  of  which  is  incompatible  with  the  continuance  of  the 
old  lease;  Tiedeman  on  Real  Property,  §  198,  and  cases;  (2)  the 
delivery  and  acceptance  of  possession  of  the  premises  (e.  g.,  by 
handing  over  the  key)  to  the  lessor;  Dodd  v.  Acklom,  (>  Man.  &  G. 
673;  (3)  a  lease  to  a  third  party  to  whom  the  lessee  hands  over 
possession.  ?uckells  v.  Atherstane,  10  Q.  B.  944.  See  Auer  v. 
Penn,  99  Penn.  St.  370,  for  a  discussion  of  what  is  sufficient  ac- 
ceptance by  a  landlord  to  effect  such  a  surrender. 

22.  What  forms  of  conveyance  arose  under  the  Statute  of 
Uses  (1.536)?  and  what  was  the  general  scope  and  purpose  of 
that  Act? 

Under  the  Statutes  of  Mortmain  persons  were  forbidden  to  trans- 
fer their  estates  to  religious  orders,  and  the  latter,  to  avoid  this 
prohibition,  resorted  to  a  device  by  which  an  ordinary  common-law 
transfer  was  made  to  one  person  (called  feoffee  to  uses)  to  hold  to 
the  use  or  benefit  of  another  (called  the  cestui  qne  use).  The  legal 
title,  with  all  rights  and  responsibilities,  was  held  by  the  former, 
and  the  equitable  interest,  which  meant  the  right  to  enjoy  all  the 
benefits  of  the  estate,  by  the  latter.  Courts  of  law  declined  to  re- 
oognize  the  rights  of  the  cestui  qitc  use,  but  these  were  protected  by 
courts  of  equity,  which  compelled  the  feoffee  to  uses  to  hold  for  the 
benefit  of  the  cestui.  Tiedeman  on  Real  Property,  §§  438-440. 

The  Statute  of  Uses  was  passed  to  prevent  the  great  number  of 
frauds  and  evasions  of  various  feudal  duties  perpetrated  under  the 
system  of  uses  as  it  then  prevailed.  It  provided  that  wherever 
any  person  stood  seized  or  possessed  of  any  estate  to  the  use  of  any 
other  person,  such  other  person  should  from  thenceforth  be  seized 
or  possessed,  (as  the  case  happened  to  be),  of  such  lands  or  heredi- 
taments in  a  like  estate  as  he  had  had  the  use  in  the  same.  Tiede- 
man on  Real  Property,  §  459,  note. 

For  a  time,  therefore,  all  such  equitable  interests  in  land  in  the 
country  were  abolished,  but  by  a  narrow  construction  of  the  statute 
it  was  held  that  after  a  transfer  to  A.  to  the  use  of  B.  to  the  use  of 
C.,  the  statute  would  operate  only  to  move  the  legal  estate  from 
A.  to  B.,  leaving  it  in  B.'s  hands  subject  to  a  trust  for  C.  Tiede- 
man, supra,  §  459.  ^ 

Under  the  statute  three  new  forms  of  conveyance  arose;  bargain 
and  sale,  covenant  to  stand  seized,  and  lease  and  release. 

A  bargain  and  sale  was  as  follows:  A.,  the  owner  of  land,  agreed 
with  a  purchaser  to  sell  him  the  land  for  money  paid,  or  its  equiva- 
lent. By  this  agreement,  A.  held  the  legal  title  subject  to  the 
use  of  B.,  and  the  Statute  of  Uses,  without  any  livery  of  seisin,  or 
any  transmutation  of  possession,  passed  it  from  A.  to  B.  Tiede- 
man, supra,  §  776. 

A  covenant  to  stand  seized  was  the  same,  except  in  the  nature 
of  the  consideration.  The  covenantee  must  be  a  near  relative  or 


PROPERTY;  EEAL.  309 

the  wife  of  the  covenantor,  the  transfer  taking  effect  through  this 
good  consideration  of  blood  or  marriage.  Tiedeman,  §  775. 

A  conveyance  by  lease  and  release  was  devised  to  evade  the 
Statute  of  Enrollments  (1536),  which  provided  that  all  transfers  of 
a  freehold  hy  bargain  and  sale  should  be  in  writing  and  enrolled  in 
one  of  the  King's  courts.  The  process  of  lease  and  release  was  as 
follows:  a  bargain  and  sale  was  made  for  one  year,  which  created  a 
legal  estate  for  Fhat  time  in  the  bargainee  with  a  reversion  in  the 
bargainer,  but  which  required  no  enrollment  because  it  was  not  a 
freehold;  the  reversioner  promptly  gave  a  common-law  release  to 
the  tenant  for  years,  and  thus  the  publicity  of  an -enrollment  was 
avoided.  Tiedeman,  §  778. 

23.  What  forfns  of  conveyance  prevail  in  the  United  States? 
It  would  be  impossible  to  even  outline  the  rules  of  conveyancing 

which  are  in  force,  but  the  legal  title  to  land  can  be  passed  by  any 
of  the  methods  mentioned  above,  unless  a  statute  prohibits  its  use. 
The  general  tendency  is  toward  simplicity,  and  the  ancient  and 
salutary  doctrine  is  everywhere  recognized  that  when  parties  actu- 
ally go  through  a  certain  form,  though  they  think  they  are  going 
through  another,  a  construction  will  be  made  to  carry  out  their  in- 
tention so  far  as  possible.  See  Tiedeman  on  Real  Property,  §§  779- 
781;  2  Wa^hburn  on  Real  Property,  pp.  438-454;  Roe  v.  Tran- 
mer,  2  Wils.  75. 

b.     Description  of  Property  Conveyed. 

24.  A.  conveys  to  B.,  by  a  deed  in  which  the  land  is  described 
ly  fixed  and  well-known  monuments,  and  also  by  courses  and 
distances,  but  the  descriptions  do  not  agree.     Which  prevails? 

The  description  by  monuments.  Measurements  and  computa- 
tions are  often  inaccurate,  but  fixed  monuments  remain.  Pcrr.am  v. 
Wead,  6  Mass.  131;  Preston  v.  Bowmar,  6  Wheat.  580.  And  the 
rule  holds  though  the  monuments  are  set  up  by  the  parties  after  the 
deed  is  drawn.  Lerned  v.  Morrill,  2  X.  H.  197'.  When  courses  and 
distances  conflict,  the  one  which  is  more  precise  prevails.  Preston 
v.  Bowmar,  supra. 

25.  What  is  the  rule  of  construction  when  land  is  granted 
bounded  "on"  a  highway  or  a  nonnavigable  stream? 

It  is  universally  agreed  that  by  such  a  description  the  title  to 
the  center  of  the  way  or  stream  is  cpnveyed.  It  is  an  arbitrary 
ruling  as  to  intention,  but  is  adopted  from  public  policy,  to  pre- 
vent a  mass  of  almost  useless  litigation  at  some  future  time  when 
the  street  might  be  abandoned,  and  the  remote  heirs  of  the  first 
grantors  might  assert  their  title  to  the  small  strips  and  gores  of 
land  which  would  result  from  a  contrary  interpretation.  Sleeper 
v.  Laconia,  60  K  H.  201;  Champlin  v.  Pendleton,  13  Conn.  23 


310  QUESTIONS  AND  ANSWERS. 

^ 

The  rule  applies  also  to  private  ways;  Fisher  v.  Snith,  9  Gray, 
441;  artificial  streams;  Warren  v.  Southworth,  6  Conn.  471;  and 
to  streets  not  yet  laid  out,  but  indicated  on  a  map  from  which  lots 
are  sold.  Gould  v.  Eastern  Ey.  Co.,  142  Mass.  85.  But  see  Ban- 
gor,  etc.  v.  Brown,  33  Me.  339. 

To  prevent  the  application  of  the  rule  in  question,  probably 
nothing  short  of  a  direct  statement  in  the  deed  to  that  effect  would 
be  sufficient.  Champlin  v.  Pendleton,  supra;  Cox  v.  Freedley,  33 
Penn.  St.  124. 

c.    Incidents  of  Leasehold  Interests.* 

26.  By  the  statute  of  a  State  all  leases  for  a  time  longer  than 
three  years  were  to  be  in  writing.     A.  made  a  parol  lease  to  B. 
for  seven  years,  B.  to  enter  March  1,  1870,  and  quit  February 
15,  1877.     B.  entered  and  paid  rent.     On  September  1,  1872, 
A.  gave  B.  notice  to  quit  on  March  1,  1873,  <and,  on  his  holding 
over,  brought  ejectment.     What  decision  ? 

The  defendant  wins.  Such  a  lease  is  only  inoperative  as  to  the 
duration  of  the  lease.  All  the  other  terms,  such  as  the  amount  of 
rent,  dates  of  payment,  time  of  year  to  quit,  etc.,  hold  good.  A. 
should  have  given  a  notice,  to  quit  on  February  loth.  Doe  d. 
Eigge  v.  Bell,  5  T.  E.  471;  Barlow  v.  Wainwright/22  Vt.  88. 

The  statutes  of  the  various  States  on  the  subject  are  quite  varied 
and  no  general  statement  can  here  be  given  of  their  provisions,  as 
to  the  length  of  time  for  which  a  lease  may  be  validly  made  by  word 
of  mouth,  notice  to  quit,  and  the  like. 

27.  Suppose  B.  is  occupying  land  as  a  tenant  from  year  to 
year,  and  holds  over  after  the  expiration  of  the  year.     What  is 
his  relation  to  the  landlord? 

If  B.  does  nothing  to  indicate  that  he  considers  himself  a  tres- 
passer, the  landlord  may  treat  him  as  such  or  not  as  he  likes.  If 
the  latter  receives  rent,  or  does  nothing  for  a  considerable  time,  B. 
will  be  a  tenant  on  the  same  terms  as  before.  Conway  v.  Stark- 
weather, 1  Den.  113;  Wolff  v.  Wolff,  69  Ala.  549. 

d.    Incorporeal  Hereditaments. 

28.  Explain  and  distinguish  the  terms  "  exception"  "  reser- 
vation "  and  "  implied  grant/' 

To  explain  by  illustration,  A.  grants  lands  to  B.  and  his  heirs, 
"  excepting  the  homestead."  B.  does  not  take  the  homestead. 
The  title  to  it  never  passes  to  him,  and,  therefore,  A.  still  owns  it  as 
he  did  before,  without  using  the  word  heirs  in  his  exception.  This 
is  a  real  exception,  according  to  the  exact  meaning  of  the  term. 

*  See  also  Ques.  &4,  85  and  86  of  this  section. 


PROPERTY;  REAL.  311 

A  "  reservation  "  is  properly  of  rent  or  something  of  the  kind, 
something  issuing  out  of  the  land. 

An  easement  is  not  the  subject  of  an  exception  or  a  reservation, 
not  being  part  of  the  land  or  issuing  out  of  it.  When  A.,  granting 
land  to  B.,  wishes  to  enjoy  an  easement  in  that  land,  B.  ought  in 
strictness  to  grant  it  back  "  to  A.  and  his  heirs,"  for  such  a  right  is 
not  a  separable  part  of  the  thing  granted  and  cannot  be  kept  back 
"by  the  grantor. 

See  3  Washburn  on  Real  Property,  pp.  440-442;  Doe  v.  Leek, 
4  Nev.  &  M.  807. 

In  practice,  however,  all  these  terms  have  been  loosely  used  for 
one  another  until  great  confusion  has  arisen:  with  the  result  that 
^ven  where  A.  transferred,  by  a  deed  poll,  part  of  his  land,  "  reserv- 
ing to  myself  a  right  of  way,"  it  was  held  after  A.'s  death  that  his 
heirs  still  had  the  right  of  way,  just  as  if  the  grantee  had  granted 
it  back  "  to  A.  and  his  heirs."  Winthrop  v.  Fairbanks,  41  Me.  307. 

For  discussion  of  "  implied  grants "  see  Ques.  29,  last  two 
paragraphs. 

29.  What  easements  pass  by  a  deed  of  land  without  mention^ 

First.  All  true  easements,  i.  e.,  all  easements  attached  to  and  en- 
joyed in  connection  with  the  land  transferred,  where  the  servient 
tenement  is  not  owned  by  the  grantor.  Such  rights  are  attached  to 
the  dominant  estate  and  go  with  it  when  it  is  transferred,  though 
not  named  or  referred  to.  2  Washburn  on  Real  Property,  p.  303; 
Kent  v.  Waite,  10  Pick.  138. 

Second.  Ways  of  necessity.  Such  a  way  arises  over  land  of  the 
grantor  when  the  land  he  has  transferred  would  be  inacces- 
sible without  it.  It  depends  on  the  principle  that  a  grant  carries 
with  it  whatever  rights  are  necessary  to  the  enjoyment  of  the  thing 
granted.  2  Washburn  on  Real  Property,  pp.  332,  333;  Leonard  v. 
Leonard,  2  Allen,  543.  The  necessity  need  not  be  absolute;  it  is 
sufficient  if  the  labor  and  expense  requisite  to  gain  a'Ccess  by  some 
other  means  are  excessive  and  disproportionate  to  the  value  of  the 
land.  Pettengill  v.  Porter,  8  Allen,  1. 

Third.  Continuous  and  apparent  easements.  X.  owns  Black- 
acre  and  Whiteacre,  and  uses  a  certain  drain  through  Whiteacre,  in 
connection  with  Blackacre.  If  he  sells  the  latter  to  Y.,  retaining 
the  former,  the  right  to  use  the  drain  through  Whiteacre  passes 
to  Y.  by  an  "  implied  grant "  and  X.  cannot  close  it.  This  is  the 
rule  against  a  grantor  for  all  easements  which  are  continuous  and 
apparent,  that  is,  for  all  those  easements  which  are  reasonably  neces- 
sary to  the  beneficial  enjoyment  of  the  part  granted,  and  are  at  the 
time  of  the  grant  used  by  the  owner  of  the  tract  for  the  benefit 
of  the  part  granted.  2  Washburn  on  Real  Property,  pp.  313-316; 
Simmons  v.  Cloonan.  81  K  Y.  557:  Mitchell  v.  Seipel,  53  Md.  251. 

Whether  in  fhe  converse  case,  where  the  quasi-serrient  estate 
(Whiteacre)  is  granted,  and  the  grantor  after  a  full  and  uncondi- 


312  QUESTIONS  AND  ANSWERS. 

tional  conveyance  of  it  seeks  to  enforce  an  easement  (in  favor  of 
Blackacre)  against  his  grantee  as  impliedly  reserved,  there  is  a  con- 
flict. Probably  the  Massachusetts  cases  represent  the  prevailing- 
American  rule,  namely,  that  there  is  no  such  implied  reservation, 
iinless  the  easement  be  one  of  strict  necessity;  that  is,  such  necessity 
that  a  similar  privilege  cannot  be  secured  by  reasonable  expense. 
Carbrey  v.  Willis,  7  Allen,  364;  Warren  v.  Blake,  54  Me.  276. 

e.   Covenants  in  Deeds. 

30.  What  covenants  as  to  title  are  generally  inserted  in  a  deed? 

1.  The  covenant  of  seisin,  which  states  that  the  grantor  is  law- 
fully seized. 

2.  The  covenant  of  right  to  convey,  which  declares  that  the 
grantor  has  a  valid  right  to  convey. 

3.  The  covenant  against  incumbrances,  which  states  that  there 
are  no  liens  or  claims  upon  the  property  in  favor  of  third  persons. 

4.  The  covenant  of  quiet  enjoyment,  which  provides  that  the 
grantee  shall  be  protected  from  all  annoyance  caused  by  a  defective 
title. 

5.  The  covenant  of  warranty,  which  binds  the  grantor  to  forever 
warrant  and  defend  the  estate  granted  against  all  (existing)  claims. 

6.  The  covenant  of  further  assurance,  which  provides  that  the 
grantor  shall  do  all  that  is  essential  to  the  completion  of  the  title. 

The  last  covenant,  though  a  useful  one,  is  not  often  employed, 
and,  in  fact,  the  covenant  of  warranty  is  frequently  the  only  one. 

Numbers  1,  2  and  3  are  statements  of  present  fact.  If  untrue, 
they  are  broken  as  soon  as  made,  and  rights  of  action  on  them 
immediately  accrue.  Greenly  v.  Wilcocks,  2  Johns.  (N.  Y.)  1;  Mit- 
chell v.  Warner,  5  Conn.  497.  Contra,  Backus  v.  McCoy,  3  Ohio  St. 
211. 

The  others  are  in  futuro,  and  until  broken  they  run  with  the  land, 
i.  e.,  they  pass  from  the  original  grantee  by  a  transfer  of  the  land 
from  him  to  another,  so  that  when  they  are  broken  the  latter  can 
bring  suit  in  his  own  name  against  the  warrantor  or  his  heirs.  3 
Washburn  on  Eeal  Property,  pp.  447-449;  Withy  v.  Mumford,  5 
Cow.  137.  Indeed,  the  person  who  is  evicted  from  the  land  by  the 
breach  of  the  warranty  is  the  only  one  who  can  sue.  Booth  v. 
Starr,  1  Conn.  244;  Withy  v.  Mumford,  supra. 

31.  Covenants  oilier  than  those  for  title  are  frequently  inserted 
in  deeds;  e.  g.,  to  repair,,  to  build  party  walls  and  the  like.     If 
the  deed  is  a  lease,  when  will  these  covenants  run  with  the  land*. 

The  test  to  apply  is  whether  the  covenant  affects  the  nature, 
quality  or  value  of  the  estate,  i.  e.,  whether  it  is  or  is  not  collateral 
to  the  relation  of  the  parties  as  landlord  and  tenant.  The  com- 
monest of  those  which  will  run  are,  perhaps,  those  to  make  repairs, 
or  to  pay  for  improvements  made  by  the  lessee.  Spencer's  Case, 


PROPERTY;  REAL.  313 

'  5  Co.  16,  a;  s.  c.,  1  Sm.  L.  C.  (8th  ed.)  89;  Hansen  v.  Meyer,  81  111.' 
321.  But  it  has  even  been  held  that  a  covenant  to  occupy  a  house 
on  the  premises  during  the  term  runs  with  the  land.  Tatem  v. 
Chaplin,  2  H.  Bl.  133. 

32.  State,  in  outline,  the  position  of  assignees  of  the  lessor 
or  the  lessee  as  to  such  covenants. 

These  cases  are  governed  by  the  Stat.  32  Henry  VIII  (part  of 
our  common  law),  which  applies  only  to  covenants  in  leases;  this  act 
gives,  in  certain  circumstances,  the  same  right  of  suit  to  assignees 
of  lessors  or  lessees,  as  the  original  parties  have  by  the  covenants. 

If  a  covenant  is  such  as  to  run  with  the  land  (see  Ques.  31),  the 
assignee  of  all  the  premises  for  the  whole  term  of  the  lease,  or  of 
part  for  the  whole  term,  is  bound  by  the  covenants.  Holford  v. 
Hatch,  1  Doug.  183;  Patten  v.  Deshon,  1  Gray,  325,  329,  330;  Over- 
man v.  Sanborn,  27  Vt.  54.  If  the  assignment  covers  less  than  the 
above,  he  is  only  a  sublessee,  and  not  liable  to  the  lessor.  Holford 
v.  Hatch,  supra;  Patten  v.  Deshon,  supra. 

The  assignee  of  the  reversion  of  part  or  of  the  whole  of  the  prem- 
ises can  also  sue  or  be  sued  on  the  covenants.  Twynam  v.  Pickard, 
2  B.  &  Aid.  105. 

An  assignee  is  bound,  though  the  word  "  assigns  "  is  nqt  used  in 
the  original  covenant,  provided  the  covenant  has  to  do  with  some- 
thing in  esse  at  the  time  of  the  lease,  e.  g.,  to  repair  a  house  then 
standing.  But  if  the  thing  is  not  in  csse,  as  in  a  covenant  to  build  a 
wall  on  the  land,  the  express  words  "  the  lessee  (or  lessor)  or  his 
assigns,"  must  be  used.  This  has  been  established  since  Spencer's 
Case,  5  Co.  16,  a;  s.  c.,  2  Gray's  Gas.  on  Property,  406;  Hansen  v. 
Meyer,  81  111.  321. 

33.  In  a  transfer  of  land  in  fee  with  these  covenants  (i.  e., 
covenants  other  than  for  title),  when  will  (lie  covenants  run  with 
the  land,  so  that  transferees  of  the  grantor  or  grantee  can  sue 
or  be  sued? 

The  subject  is  in  a  confused  condition,  the  technical  objection 
that  no  relation  of  contract  exists  between  the  new  owner  and  the 
original  covenantee  of  his  predecessor  being  balanced  against  the 
advantage  of  supporting  a  policy  of  mutual  benefit  to  adjacent  es- 
tates, according  to  the  wishes  of  the  parties  who  made  the  covenant. 

The  rule  at  law  may  be  summarized  as  follows : 

1.  The  covenant  must  be  such  as  directly  relates  to  the  land,  and 
does  not  attach  to  it  some  new  and  unusual  incident.     Ackroyd  v. 
Smith,  10  C.  B.  164. 

2.  If  that  fundamental  requirement  is  satisfied,  and  if  privity  of 
estate  existed  between  the  original  covenanting  parties,  the  general 
rule  is,  benefits  run;  burdens  do  not.     That  is,  cither  the  owner  of 
•the  land  benefited  or  his  assigns  can  sue  the  other  party  to  the  cove- 


314  QUESTIONS  AND  ANSWERS. 

nant,  but  the  assigns  of  the  latter  are  free.     Austerberry  v.  Old- 
ham,  29  Ch.  Div.  750,  780;  Plymouth  v.  Carver,  16  Pick.  183. 

3.  Even  burdens  will  run  if  the  covenant  is  in  aid  of  an  easement 
or  profit  already  existing  between  the  lands  of  the  parties.     Morse 
v.  Aldrich,  19  Pick.  449;  Fitch  v.  Johnson,  104  111.  111. 

4.  And  the  later  cases  tend  to  the  position  that  the  intention  of 
the  covenanting  parties  must  control,  and  that  benefits  and  burdens 
will  both  run  when  their  intention  to  that  effect  appears,  provided 
the  condition  stated  in  (1)  is  observed.     Mott  v.  Oppenheimer,  135 
N.  Y.  312;  Savage  v.  Mason,  3  Cush.  500;  and  note  by  Holmes,  J., 
4  Kent's  Com.  (12th  ed.),  p.  480. 

In  equity  the  rule,  speaking  generally,  is  that  assigns  who  take 
with  notice  are  bound.  Tulk  v.  Moxhay,  2  Phil.  774;  Hayward  v. 
Brunswick,  8  Q.  B.  Div.  403;  Tallmadge  v.  Bank,  26  N.  Y.  105. 
With  our  registry  system  the  equitable  and  legal  rules  thus  ap- 
proach each  other  closely.  Mott  v.  Oppenheimer,  135  !N".  Y.  312. 

f .    Execution  of  Deeds. 

34.  How  must  a  deed  be  executed  so  as  to  become  operative  ? 

"  Execution "  means  signing,  sealing  and  delivery.  Thorp  v. 
Coal  Co.,  48  N.  Y.  255.  The  signing,  though  dispensed  with  at 
common  law,  and  probably  not  required  by  the  Statute  of  Frauds,  is 
now  necessary  in  most  of  the  States,  and  always  advisable.  3  Wash- 
burn  on  Eeal  Property,  pp.  270,  271. 

Sealing  is  everywhere  an  essential,  although  in  many  States  it  has 
become  a  very  slight  thing.  Originally,  an  adhesive  substance 
with  an  impression  upon  it  was  requisite;  now,  in  most  States,  a 
piece  of  colored  paper,  or  even  a  scroll  with  "  L.  S."  inside  is 
sufficient.  3  "Washburn  on  Eeal  Property,  pp.  273,  274. 

"  Delivery  "  does  not  necessarily  include  a  passing  of  something 
material  from  the  grantor  or  obligor  to  the  other  party.  It  is  a 
question  of  intention;  and  if  any  words  or  acts  show  the  intention 
that  the  instrument  shall  be  at  that  time  operative,  that  is  a  good 
delivery.  See  Xenos  v.  Wickham,  L.  E.  2  H.  L.  296,  312,  per 
Blackburn,  J.;  Somers  v.  Pumphrey,  24  Ind.  231,  239,  ff. 

What  effect  the  registry  of  a  deed  should  have  as  evidence  of  in- 
tention to  deliver  is  not  well  settled.  Those  courts  which  see  most 
clearly  the  value  of  the  registry  system  hold  that  the  presumption  of 
intention  from  such  an  act  can  only  be  overthrown  by  the  strongest 
evidence  of  a  contrary  intention.  Mitchell  v.  Ryan,  3  Ohio  St  377.  But 
in  other  States,  no  presumption  whatever  arises  from  such  record. 
Barnes  v.  Barnes,  161  Mass.  3-81  (a  reluctant  decision). 

35.  What  part  does  acceptance  by  the  grantee  play  in  the  de- 
livery of  a  deed? 

The  rule  stands  that  acceptance  (the  consent  to  receive)  is  as 
essential  as  the  intention  to  deliver  on  the  part  of  the  grantor,  but 


PROPERTY;  REAL.  315 

it  is  well  settled  that  no  formal,  express  assent  is  needed.  Tiede- 
man  on  Real  Property,  §  813.  If  the  conveyance  is  beneficial  to  the 
grantee,  many  courts  hold  that  his  acceptance  is  presumed,  unless 
dissent  is  shown.  Mitchell  v.  Ryan,  3  Ohio  St.  377;  Merrills  v. 
Swift,  18  Conn.  257;  Jones  v.  Swayze,  42  N".  J.  Law,  279.  And  in 
these  cases  the  grantees  were  even  ignorant  of  the  transaction. 
See,  contra,  Maynard  v.  Maynard,  10  Mass.  456;  Welch  v.  Sackett, 
12  Wis.  243. 

36.  What  is  an  escrow? 

It  is  a  deed  delivered  by  the  grantor  to  a  third  party  to  be  deliv- 
ered over  to  the  grantee  upon  the  performance  of  some  condition 
annexed  thereto.  Whether  it  is  an  escrow  or  is  the  grantor's  deed 
""  presently/'  depends  upon  his  intention  when  he  makes  the  first 
delivery.  An  escrow  is  not  revocable  by  the  grantor,  and  on  the 
second  delivery  it  takes  effect  by  relation,  for  most  purposes,  from 
the  date  of  the  first  delivery.  3  Washburn  on  Real  Property,  pp. 
298-305;  Ruggles  v.  Lawson,  13  Johns.  (N.  Y.)  285;  Cook  v.  Brown, 
34  N.  H.  460. 

g.    Estoppel. 

37.  What  does  "  title  by  estoppel "  mean? 

This  means,  that  where  A.,  not  having  title,  conveys  a  specific 
piece  of  land  to  B.  with  warranty,  the  title,  if  it  subsequently 
comes  to  A.,  "  inures  to  the  benefit "  of  B.  Bouvier's  Law  Diet., 
Estoppel;  and  on  the  whole  subject  of  such  acquisition  of  title. 
Rawle  on  Covenants  for  Title,  chap.  9.  Whether  this  means 
that  the  subsequently  acquired  title  actually  passes  to  B.,  or 
merely  that  A.  is  estopped  to  set  it  up  as  his  own,  is  a  mooted 
question.  Washburn  stands  for  the  former  view;  3  Washburn  on 
Real  Property,  p.  109;  and  Tiedeman  for  the  latter.  Tie'deman  on 
Real  Property,  §  730. 

38.  Suppose  after  a  conveyance,  as  suggested  in  No.  37,  B. 
conveys  to  C.,  who  is  evicted  by  the  owner  of  the  paramount  title, 
can  C.  sue  A.  on  the  covenant? 

The  question  has  caused  much  controversy:  for  how  can  a 
covenant  run  with  the  land,  when  the  grantor  had  no  title  to 
transfer?  On  the  other  hand,  the  covenant  would  fail  when  most 
needed,  and  the  warrantor  would  be  the  better  off,  the  worse  his 
title  was.  A  middle  course  is  taken  in  New  York,  where  the 
covenant  is  held  to  run,  if  the  grantor  had  possession  at  the  time. 
Beddoe  v.  Wadsworth,  21  AVenc .  (X.  Y.)  120.  In  Massachusetts, 
seisin  in  the  grantor  is  necessary.  Slater  v.  Rawson,  1  Met.  450; 
•S.  c..  6  id.  439.  In  Illinois,  the  covenant  attaches  to  the  land,  if 
the  original  covenantee  takes  possession.  Wead  v.  Larkin,  54 
111.  489. 


316  QUESTIONS  AND  ANSWERS. 

h.     Dedication. 

39.  What  are  the  two  essential  elements  of  the  acquisition  of 
a  title  by  dedication? 

They  are:  1.  An  intent  on  the  part  of  the  owner  of  the  fee  sim- 
ple to  allow  the  public  the  use  of  the  land  (generally  for  highway 
purposes,  and  sometimes  for  a  park,  or  the  like).  This  may 
be  shown  by  any  significant  words  or  acts,  nothing  in  the  nature  of 
a  deed  being  necessary. 

2.  An  acceptance  by  the  public.  This  is  not  necessarily  a  for- 
mal one,  but  may  be  effected  simply  by  user  by  the  public.  Tiede- 
man  on  Real  Property,  §  611;  Pope  v.  Town  of  Union,  18  N.  J.  Eq. 
282. 

A  user  for  less  than  the  period  of  prescription  will  probably 
suffice  for  an  acceptance  of  the  owner's  dedication.  Noyes  v. 
Ward,  19  Conn.  267;  Denning  v.  Roome,  6  Wend.  (N.  Y.)  651. 

IV.  RIGHTS  IN  LAND  OF  OTHERS. 

40.  Define  easement,  and  dominant  and  servient  tenement,, 
and  distinguish  between  an  easement  and  a  profit  or  common* 

An  easement  is  a  right  in  the  land  of  another,  whereby  his  en- 
joyment is  restricted,  either  negatively,  where  he  must  refrain 
from  using  'his  land  in  a  manner  otherwise  lawful,  or  affirmatively, 
where  the  owner  of  the  easement  has  the  right  to  the  use  of  the* 
other  man's  land  for  certain  purposes.  An  example  of  the  nega- 
tive easement  is  that  in  a  party  wall,  and  of  the  affirmative,  a  right 
of  way. 

An  easement  always  exists  for  the  benefit  of  some  piece  of  land,, 
and  is  always  appurtenant  to  that  land;  i.  e.,  a  grant  by  X.  of  a 
right  of  way  over  his  land  to  A.  and  his  heirs,  without  attaching; 
it  to  any  land  belonging  to  the  grantee,  would  not  create  an  ease- 
ment, but  only  a  mere  personal  right.  See  N"o.  29,  supra. 

The  land  to  which  an  easement  is  attached  is  the  dominant 
tenement,  and  that  which  is  subject  to  it  is  the  servient  tenement. 
Tiedeman  on  Real  Property,  §  597. 

A  profit  a  prendre,  or  common,  differs  from  an  easement  in 
that  its  owner  can  go  upon  the  servient  tenement  and  take  away 
part  of  it,  such  as  gravel  or  ore.  The  chief  examples  are  com- 
mon of  pasture,  or  the  right  to  pasture  cattle  on  the  land  of  another, 
and  common  of  estovers,  or  the  right  to  take  wood  necessary  for 
fuel,  repairs,  or  fencing  on  the  dominant  tenement.  Id.,  §  591. 

41.  How  are  easements  acquired?  and  how  may  they  be  lost 
or  extinguished? 

They  are  gained  by  prescription  (see  Xo.  14),  or  by  grant,  ex- 
press or  implied.  An  easement  by  express  grant  may  be  the  sub- 
ject of  a  separate  deed,  or  it  may  be  "  reserved  "  (see  No.  28)  to  a. 
grantor,  when  he  sells.  As  to  implied  grants,  see  No.  29. 


PROPERTY;  REAL.  317 

Easements  are  lost,  (1)  by  formal  release;  (2)  by  merger  of  the 
dominant  and  servient  tenements  in  the  same  person;  (3)  by  aban- 
donment, i.  e.,  by  nonuser,  even  for  a  short  period  of  time,  if  coupled 
with  acts  showing  an  intention  to  permanently  abandon;  Canny  v. 
Andrews,  123  Mass.  155;  Pratt  v.  Sweetser,  68  Me.  344;  (4)  by  a 
•change  in  the  dominant  tenement,  substantially  altering  the  nature 
or  quantum  of  the  servitude;  Harvey  v.  Walters,  L.  R.  8  C.  P. 
162;  2  Washburn  on  Real  Property,  372;  or  (5)  by  license,  (even 
parol),  from  the  owner  of  the  dominant  tenement  to  the  owner  of 
the  servient  to  do  some  act  inconsistent  with  the  continuance  of  the 
easement.  This  is  given  effect,  though  no  writing  passes,  because 
the  trend  of  the  common  law  is  against  incumbrances  on  land. 
Winter  v.  Rockwell,  8  East,  308;  Morse  v.  Copeland,  2  Gray, 
302.  On  the  whole  topic  of  extinguishment,  see  2  Washburn 
on  Real  Property,  pp.  370-374. 

42.  X.  owns  a  right  of  way  over  Y/s  land,  which  falls  out 
of  repair.     Who  must  maintain  it? 

X.  The  right  of  way  is  his  property  and  he  must  take  care  of 
it.  He  may  even  enter  upon  adjacent  portions  of  the  land  through 
which  the  way  runs,  if  necessary  in  the  process  of  repairing.  Pres- 
cott  v.  White,  21  Pick.  341. 

The  above  rule  applies  to  all  easements,  but  the  case  of  party 
walls  (i.  e.,  where  parties  erect  a  wall  on  the  line  between  two  lots 
for  the  common  support  of  adjoining  buildings,  each  owning  his 
half  of  the  wall  and  an  easement  of  support  in  the  other  half),  fur- 
nishes a  partial  exception.  There,  if  the  wall  falls  out  of  repair, 
•either  one  may,  if  he  so  choose,  renew  it  and  compel  the  other  to 
pay  his  share  of  the  expense.  Campbell  v.  Mesier,  4  Johns.  Ch. 
(N.  Y.)  334;  Pierce  v.  Dyer,  109  Mass.  374. 

43.  X.  had,  by  deed,  a  right  of  way  "  to  a  stable  and  loft,  and 
the  open  space  under  said  loft,  and  then  used  as  a  woodshed," 
etc.,  and  he  converted  the  "  loft  and  space  underneath  "  into  a 
cottage.    The  owner  of  the  servient  tenement  claimed  that  X.  had 
no  right  to  pass  and  repass  to  this  cottage.    Was  he  right? 

The  court  so  held  in  Allan  v.  Gomme,  11  Ad.  &  E.  759.  A  right 
of  way  must  be  confined  strictly  to  the  terms  of  the  grant,  and  it 
is  obvious  in  the  above  case,  that  the  number  of  persons  using 
the  way  and  their  manner  of  using  it.  would  be  a  much  greater 
burden  on  the  owner  of  the  servient  estate  than  before  the  change. 

So,  in  the  case  of  a  way  arising  by  prescription,  if  the  user  dur- 
ing the  statutory  period  i's  only  for  agricultural  purposes,  the  right 
gained  is  a  right  of  way  for  those  purposes,  and  no  others.  Tiede- 
man  on  Real  Property,  §  608,  and  cases  cited;  Wimbledon,  etc.  v. 
Dixon.  1  Ch.  Div.  362:  s.  c.,  3  Gray's  Cas.  on  Property,  259;  French 
v.  Marstin,  24  N.  H.  440;  s.  c.,  57  Am.  Dec.  294. 


318  QUESTIONS  AND  ANSWEKS. 

44.  What  are  the  easements  of  light  and  air?  and  of  sup- 
port? 

If  A.'s  windows  overlook  B.'s  land  for  the  period  of  prescription, 
by  the  rule  of  the  common  law  B.  must  thereafter  refrain  from 
putting  up  anything  on  his  land  which  will  obstruct  the  passage 
of  light  and  air,  in  the  quantity  and  quality  in  which  they  have 
come  to  A.'s  windows  during  that  time.  This  easement  can 
still  be  gained  by  prescription  in  England,  but  the  doctrine  has  been 
repudiated  almost  everywhere  in  this  country.  It  is  considered  that 
such  an  acquisition  is  not  adapted  to  the  rapid  change  and  growth 
of  cities  in  this  country.  Tiedeman  on  Real  Property,  §§  612,  613  j 
Keats  v.  Hugo,  115  Mass.  204;  Parker  v.  Foote,  19  Wend.  (X.  Y.) 
309. 

The  right  of  lateral  support  is  the  right  of  a  landowner  to 
have  his  land  supported  in  its  natural  position  by  the  land  adjacent 
(or  subjacent):  that  is,  that  th?  adjacent  owner  shall  not  excavate 
so  that  the  land  falls  in.  This  is  a  "  natural  right,"  not  dependent 
on  grant  or  covenant,  and  is  absolute,  i.  e.,  no  amount  of  care  by 
the  adjacent  owner  will  excuse  him  if  his  digging  causes  damage  to 
his  neighbor's  land.  Humphries  v.  Brogden,  12  Q.  B.  739;  s.  c., 
2  Gray's  Cas.  on  Property,  66;  Gilmore  v.  Driscoll,  122-  Mass.  199. 

Speaking  generally,  no  recovery  can  be  had,  in  this  country,  for 
damage  to  buildings,  caused  by  such  excavation,  unless  negligence 
appears.  The  right  only  pertains  to  the  soil.  Lasala  v.  Holbrook, 
4  Paige,  169;  Schultz  v/Byers,  53  X.  J.  Law,  442. 

45.  State,  in  outline,  the  right  of  a  landowner  as  to  (1)  water 
in  a  spring  or  well,  (2)  surface  water,  (3)  water  in  a  defined 
stream. 

As  to  (1)  and  (2),  his  right  is  absolute,  to  use  it  as  he  likes:  the 
water  is  still  part  of  the  land.  The  case  of  Broadbent  v.  Ramsbo- 
th.im,  11  Ex.  602,  is  exactly  on  the  point,  and  represents  settled  law. 
The  defendant  drained  off  a  pwamp,  and  a  well  which  sometimes 
overflowed  and  spread  itself  on  the  surrounding  ground,  (both  on 
his  own  land).  The  plaintiff  claimed  damage  from  the  diversion 
of  these  supplies  from  a  water-course  near  by.  The  court  said  (per 
Alderson,  B.): 

"  No  doubt,  all  the  water  falling  from  heaven  and  shed  upon  the 
surface  of  a  hill,  at  the  foot  of  which  a  brook  runs,  must,  by  the 
natural  force  of  gravity,  find  its  way  to  the  bottom,  and  so  into  the 
brook,  but  this  does  not  prevent  the  owner  of  the  land  on  which  this 
water  falls  from  dealing  with  it  as  he  may  please  and  appropriat- 
ing it.  He  can-not,  it  is  true,  do  so,  if  the  i^at^r  has  arrived  at,  and 
is  flowing  in  some  natural  channel,  already  formed.  But  he  has  a 
perfect  right  to  appropriate  it  before  it  reaches  such  a  channel. 
In  this  case  a  basin  is  formed  in  his  land,  which  belongs  to  him, 
and  the  water  from  the  heavens  lodges  there."  See  also  Curtiss  v. 
Ayrault,  47  N.  Y.  73. 


PROPERTY;  REAL.  319 

The  question  causing  the  most  discussion  in  regard  to  surface 
water  has  been  whether  a  man  could  keep  off  (e.  g.,  by  a  wall) 
the  surface  water  coming  naturally  from  his  neighbor's  land. 
The  weight  of  authority  is  that  he  may  protect  his  land;  otherwise 
his  right  to  improve  his  property  or  change  its  condition  would 
be  abridged.  Public  policy  also  forbids  such  a  hindrance  to  the 
improvement  of  land.  Gannon  v.  Hargadon,  10  Allen,  106;  Barkley 
v.  Wilcox,  86  N.  Y.  140.  Contra,  that  such  flow  of  water  is  ne- 
cessarily incidental  to  lower  land,  and  that  sic  utcrc  tuo,  etc.,  ap- 
plies. Gillham  v.  E.  E.  Co.,  49  111.  484;  Ogburn  v.  Connor,  46  Cal. 
346. 

As  to  (3),  the  rule  is  that  each  riparian  owner  has  a  "  natural 
easement  "  in  the  stream,  for  the  use  of  a  reasonable  amount  of  the 
running  water.  What  is  reasonable  depends  on  the  circumstances 
cf  each  case;  it  is  a  question  of  degree,  and  means  (in  general)  that 
the  supply  of  those  below  must  not  be  materially  diminished. 
Pitts  v.  Lancaster  Mills,  13  Met.  156;  Chrisman  v.  Wheaton,  24 
Penn.  St.  298.  Nor  can  the  riparian  proprietor  corrupt  its  quality, 
or  set  it  back  on  land  above.  Washburn  v.  Gilman,  64  Me.  163;  s.  c., 
18  Am.  Rep.  246;  McCoy  v.  Danley,  20  Penn.  St.  85.  But  by  ex- 
press grant,  or  by  a  continuance,  during  the  statutory  period  of 
prescription,  of  an  unreasonable  user,  a  true  easement  against  the 
other  riparian  owners  who  are  concerned  may  be  gained.  Tiede- 
man  on  Real  Property,  §  617,  and  cases  cited. 

46.  What  is  the  difference  between  a  license  and  an  easement? 

A  license,  pure  and  simple,  is  nothing  but  an  excuse  for  a  tres- 
pass, revocable  at  any  time,  and  personal  to<  the  parties,  i.  e.,  ex- 
piring at  the  death  of  either.  It  is  revocable,  even  if  acted  upon, 
because  otherwise  such  a  license  might  be  made  equivalent  to  a 
grant  of  an  easement,  to  the  confusion  of  titles,  and  the  subversion 
of  the  Statute  of  Frauds.  Wood  v.  Leadbitter,  13  M.  &  W.  838; 
Cook  v.  Stearns,  11  Mass.  533. 

An  easement  descends  to  the  heirs  of  the  owner  as  part  of  the  land 
to  which  it  is  attached,  is  an  actual  interest  in  the  land  which  is 
subject  to  it,  and  is,  of  course,  not  revocable  by  the  owner  of  the 
servient  estate,  when  once  existent.  Morse  v.  Copeland,  2  Gray, 
302;  Tiedeman  on  Real  Property,  §§  651-653. 

V.  WILLS  AND  ADMINISTRATION. 

a.     In  General. 

47.  Trace  in  outline  the  changes  in  the  common  law  as  to 
the  right  to  dispose  of  property  at  death. 

1.  As  to  realty.  Under  the  feudal  law,  no  devise  at  all  was  al- 
lowed, except  in  certain  places  by  local  custom.  Then  the  Stat.  ot 
Henry  VIII  (1540)  allowed  the  devise,  by  a  will  in  writing,  of  all 
realty,  except  that  held  in  military  tenure.  The  Statute  of  Frauds 


320  QUESTIONS  AND  ANSWERS. 

(1677)  removed  that  exception,  and  required  in  addition  to  the 
writing  that  the  will  should  be  signed  by  the  testator,  and  attested 
by  at  least  three  witnesses.  (See  the  statute,  4  Gray,  Cas.  on  Prop. 
124.)  The  Wills  Act  (1837)  reduced  the  number  of  witnesses  to 
two.  (See  the  statute,  4  id.  127.) 

2.  Personalty.  All  personal  property  was,  at  common  law,  freely 
devisable.  The  Statute  of  Frauds  required  writing,  and  the 
Wills  Act  added  the  attestation  of  two  witnesses. 

Thus,  the  provisions  for  disposition  of  the  two  kinds  of  property 
have  been  steadily  approaching  each  other.  The  statutes  in  our 
States  are  somewhat  varied,  but  they  generally  follow  the  details 
and  wording  of  the  Statute  of  Frauds,  with  modifications  from  the 
Wills  Act.  See  the  text  of  the  various  statutes,  and  Tiedeman  on 
Eeal  Property,  §  872. 

48.  Suppose  a  will  is  made  in  Alabama,  disposing  of  per- 
sonalty in  various  States  and  of  realty  in  New  York.     What 
law  governs  as  to  questions  arising  under  the  will? 

As  to  the  realty,  the  formal  requirements  of  the  lex  loci  rei  sitae, 
or  place  where  the  real  estate  is  situated,  must  be  complied  with  to 
make  a  valid  devise  of  it.  Story  on  Conflict  of  Laws  (8th  ed.), 
§  474;  United  States  v.  Crosby,  7  Cranch,  115. 

Questions  of  interpretation.,  and  questions  regarding  the  disposal 
of  personalty,  are  settled  by  the  law  of  the  domicile  of  the  testator. 
This  is  because  they  depend  upon  his  intention,  and  he  is  sup- 
posed to  be  acquainted  with  the  laws  of  his  domicile,  and  to  in- 
tend to  make  his  will  speak  in  accordance  with  them.  Personal  . 
estate,  moreover,  depends  for  its  situs  upon  the  domicile  of  its 
owner.  Story  on  Conflict  of  Laws,  §  749,  h;  Ford  v.  Ford,  80 
Mich.  42;  Washburn  v.  Van  Steenwyk,  32  Minn.  336.  But  see 
Clarke's  Appeal,  70  Conn.  195. 

49.  What  is  the  prolate  of  a  will? 

It  is  a  decision,  by  the  court  having  charge  of  probate  matters, 
stating  that  X.  made  a  will. 

The  probate  also  recognizes  X.'s  designation  of  an  executor  if 
he  appointed  one,  and  without  it  the  executor  cannot  prove  his 
title  as  such.  Dixon  v.  Eamsay,  3  Cranch,  319.  When  probate  is 
granted,  or  an  administrator  appointed,  the  title  of  the  executor 
or  administrator  takes  effect,  by  relation,  from  the  death  of  the 
deceased  person.  Foster  v.  Bates,  12  M.  &  W.  226;  Newconib  v. 
Williams,  9  Met.  525,  533. 

Wills  of  real  estate  now  go  through  the  Court  of  Probate  in 
the  same  manner  as  Mills  of  personalty,  and  when  probated,  they 
become  in  most  States  conclusive  evidence  of  their  own  due  execu- 
tion in  any  matter  arising  collaterally.  Schouler  on  Executors  and 
Administrators,  §  59,  and  cases  cited:  3  Washburn  on  Real  Prop- 
erty, p.  508;  and  especially,  1  Woerner,  Amer.  Law  of  Adm.,  §  228. 


PROPERTY;  REAL.  321 

50.  What  is  a  nuncupative  will? 

It  is  an  oral  will  of  personalty  made  in  extremis,  and  valid  only 
when  made  by  a  seaman  or  soldier,  in  actual  service.  Bouv.  Law 
Diet.  :  Prince  v.  Hazelton,  20  Johns  (X.  Y.)  502. 


51.  Can  a  married  woman  dispose  of  property  by 

At  common  law,  all  her  chattels  vested  in  her  husband  ab- 
solutely so  the}"  were  not  hers  to  be  disposed  of:  and  speaking 
generally,  any  will  she  might  make  of  real  estate  was  also  void. 
Cutter  v.  Butler,  25  X.  H.  343;  Adams  v.  Kellogg,  Kirby  (Conn.), 
195  ;  s.  c.,  1  Am.  Dec.  18. 

The  state  of  the  law  on  the  subject  varies  according  to  the 
interpretation  of  the  numerous  and  diverse  statutes  on  the  subject, 
the  tendency  being,  of  course,  to  free  women  from  restrictions. 
See  3  Washburn  on  Eeal  Property,  p.  510. 

52.  Explain  the  following  terms  as  used  in  statutes  concern- 
ing wills:  "of  full  age;"  "publication;"  "the  will  speaks  at 
testator's  death." 

"  Of  full  age,"  means,  in  the  majority  of  the  States,  that  a  person 
must  be  over  twenty-one  years  of  age  to  make  a  valid  will  of  any 
property.  In  some  of  the  others,  a  distinction  based  on  the  kind  of 
property  disposed  of  is  drawn,  and  personalty  may  be  bequeathed 
at  eighteen.  See  Schouler  on  Wills,  §  43. 

"  Publication,"  means  a  declaration  by  act  or  word,  by  the  testa- 
tor, that  the  paper  presented  to  the  witnesses  for  attestation  is  his 
will.  It  is  not  required  everywhere.  Bouv.  Law  Diet. 

The  will  speaks  at  the  death,  rather  than  at  the  time  of  execu- 
tion, i.  e.,  property  acquired  after  the  will  is  made  (even  land)  is 
included  in  its  operation. 

The  fact  that  land  is  thus  included  depends  on  statute,  for  since  a 
will  is  a  grant,  it  coul  I,  at  common  law,  transfer  only  what  the  tes- 
tator held  at  the  time  the  will  was  executed.  1  Jarman  on  Wills, 
p.  602,  note. 

53.  State,  generally,  what  is  sufficient  mental  capacity  for  mak- 
ing a  valid  will. 

A  rule  on  the  subject,  by  Eedfield,  Ch.  J.,  in  Converse  v.  Con- 
verse, 21  Yt.  168,  is  perhaps  as  comprehensive  as  need  be: 

"A  testator  must,  undoubtedly,  retain  sufficient  active  memen- 
to collect  in  his  mind,  without  prompting,  particulars  or  elements 
of  the  business  to  be  transacted,  and  to  hold  them  in  his  mind  a 
sufficient  length  of  time  to  perceive,  at  least,  their  more  obvious 
relations  to  each  other,  and  be  able  to  form  some  rational  judgment 
in  relation  to  them.  *  *  *  But  there  must,  undoubtedly,  be 
some  limit.  When  ,ne  is  confessedly  in  a  condition  to  be  con- 
stantlv  liable  to  commit  ludicrous  mistakes  in  regard  to  the  most 


QUESTIONS  AND  ANSWERS. 

simple  and  familiar  subjects,  he  ought  not  to,  and  cannot,  make  a 
will." 

He  need  not  have  such  a  capacity  as  to  justify  Ms  engaging  in  a 
complex  or  intricate  business,  but  he  must  be  capable  of  under- 
standing the  nature  of  the  transaction,  and  the  disposition  of  his 
property  effected  by  the  will.  See  "Hopper's.  Will,  33  N.  Y.  619, 
624. 

b.  Fraud  and  Undue  Influence. 

54.  What  is  undue  influence? 

The  classical  definition  is  in  Hall  v.  Hall,  L.  R.  1  P.  &  D.  481;. 
viz.,  "  That  which  overpowers  the  volition,  without  convincing  the 
judgment.  *  *  *  In  a  word,  the  testator  may  be  led,  but  not 
driven."  See  also  Haydock  v.  Haydock,  33  N".  J.  Eq.  494. 

Persuasion,  appeals  based  on  ties  of  kindred  or  on  obligations 
for  past  services,  or  even  an  influence  of  an  immoral  character,  may 
be  used  on  a  testator.  They  are  not  such  "  undue  "  influence  as 
will  invalidate  a  will,  unless  they  amount  to  coercion  or  fraud. 
Boyce  v.  Ros«borough,  0  Houpe  of  Lords  Cas.  2,  47-49;  Children's 
Aid  Society  v.  Loveridge,  70  N.  Y.  387,  394. 

55.  What  effect  on  this  question  has  the  fact  that  a  large 
bequest  has  been  made  to  one  in  confidential  or  fiduciary  relations 
with  the  deceased,  as,  for  example,  a  religious  adviser? 

This  has  been  the  subject  of  endless  controversy.  The  weightier 
authorities  hold  that  there  is  raised  a  strong  suspicion  of  undue  in- 
fluence, such  that  it  calls  for  explanation  from  those  supporting  the 
will.  That  is  as  much  weight  as  such  a  gift  can  have  on  the  de- 
cision of  the  question,  for  although  it  is  unlikely  that  people  will 
in  their  lifetime  rob  themselves  for  their  friends,  non  constat,  that 
they  will  not  give  their  property,  at  death,  to  those  friends  rather 
than  to  their  relatives.  In  other  words,  the  mere  fact  of  a  large 
bequest  to  a  person  in  such  a  relation  to  the  deceased  is  not  enough. 
of  itself,  to  throw  upon  those  supporting  the  will  even  the  burden 
of  going  forward  with  evidence  to  disprove  undue  influence^ 
Parfitt  v.  Lawless,  L.  R.  2  P.  &  D.  462;  Bancroft  v.  Otis,  91  Ala. 
279;  s.  c.,  24  Am.  St.  Rep.  904,  911  (overruling  80  Ala.  129). 

Some  courts,  however,  insist  that  the  same  rule  holds  as  with 
gifts  inter  vivos  under  the  conditions  supposed,  namely,  that  the 
beneficiary  must  establish,  by  a  clear  preponderance  of  evidence, 
that  the  transaction  wa?  entirely  fair,  especially  when  he  partici- 
pated in  the  preparation  of  the  instrument.  Richmond's  Appeal,. 
59  Conn.  226;  Garvin  v.  Williams,  44  Mo.  465. 

c.  Incorporation  by  Reference. 

56.  Suppose  a  will  is  made  containing  this  clause:      'My 
silver  to  go  to  the  persons  specified  in  a  paper  marked  Exhibit 


PROPERTY;  REAL.  323 

A,  and  addressed  to  my  executors,  to  be  deposited  with  this  will" 
Would  a  paper,  so  referred  to,  be  entitled  to  admission  to  probate 
as  part  of  the  will,  if  it  were  found  deposited  therewith? 

No.  Two  requisites  are  necessary  to  incorporate  in  a  will  an  un- 
witnessed paper  of  a  testamentary  character:  (1)  That  the  reference 
to  it  in  the  will  shall  be  sufficiently  clear  and  definite  to  enable  the 
court  to  identify  the  paper  offered  as  the  one  referred  to;  (2)  that 
the  document  shall  be  referred  to  as  existing,  and  shall  actually  be 
existent,  at  the  time  the  will  is  executed. 

In  the  case  supposed,  the  description  of  the  paper  is  sufficiently 
clear,  but  the  words  look  to  the  future,  so  the  second  requisite  is 
not  satisfied.  Allen  v.  Maddock,  11  Moo.  P.  C.  427;  s.  c.,  4 
Gray,  Cas.  on  Property  198;  Newton  v.  Seaman's  Friend  Soc.,  130 
Mass.  91. 

If,  subsequently  to  the  execution  of  the  will,  the  list  had  been 
made  out,  and  then  a  codicil  executed  republishing  the  will,  the  list 
would  have  been  incorporated,  the  codicil  furnishing  the  requisite 
testamentary  formalities,  and  the  original  will  providing  the  de- 
scription. Goods  of  Sunderland,  L.  R.  1  P.  &  D.  198;  s.  c.,  4  Gray, 
Cas.  on  Property,  217. 


d.     Competency  of  Witnesses. 

57.  Suppose  a  witness  to  a  will  becomes  insane  subsequently 
to  his  attestation.  Can  the  will  be  probated? 

It  is  now  well  settled  that  the  condition  existing  at  the  time 
of  the  execution  of  the  will  is  the  one  to  look  at.  If  the  witness 
was  credible  (i.  e.,  competent)  at  that  time,  his  attestation  is  good, 
whatever  may  happen  later.  Kichardson  v.  Richardson,  35  Vt. 
238;  Sears  v.  Dillingham,  12  Mass.  368;  Schouler  on  Wills,  §  351. 


58.  What  is  the  effect  of  an  attestation  by  one  who  takes  &. 
legacy  or  a  devise  under  the  will? 

At  common  law,  an  attestation  by  a  person  so  situated  was  of 
no  effect  whatever,  and  the  will  was  void  unless  there  were  a  suf£> 
cient  number  of  witnesses  without  the  subscriber  in  question. 
But  now,  by  statute  in  England  and  most  of  the  States,  such  n. 
result  is  avoided  by  a  provision  that  the  gift  to  such  witness  shall 
be  void,  but  the  rest  of  the  will  shall  stand.  Schouler  on  Wills, 
§  357;  1  Jarman  on  Wills,  71-73,  Bigelow's  note. 

Whether  a  gift  by  the  will  to  the  husband  or  wife  of  an  attest- 
ing witness  is  void,  under  those  statutes,  is  not  settled.  That  it 
is  void,  see  Winslow  v.  Kimball,  25  Me.  493. 

That  the  witness  is  disqualified  by  interest,  and  the  whole 
void,  see  Sullivan  v.  Sullivan,  106  Mass.  474. 


324  QUESTIONS  AND  ANSWERS. 

e.     Attestation.  * 

59.  What  is  meant  by  signing  "  in  the  presence "  of  the 
testator? 

The  rule  is,  that  signing  in  the  room  where  the  testator  is  is 
prima  facie  good,  as  a  signing  in  his  presence,  and  signing  in  an- 
other room  is  prinia  facie  bad.  Schouler  on  Wills,  §  342 ;  1  Jarman 
on  Wills  (5th  Am.  ed.),  p.  224,  note.  The  testator  need  not  actu- 
ally see  the  signing  by  the  witnesses.  It  is  sufficient  if  it  takes 
place  where  he  can  take  cognizance  by  his  senses  (sight  or  hearing) 
of  what  is  being  done,  if  he  will.  Newton  v.  Clarke,  2  Curt.  320; 
Riggs  v.  Riggs^  135  Mass.  238;  Reynolds  v.  Reynolds,  1  Spears 
(S.  C.),  253;  s.  c.,  40  Am.  Dec.  599. 

60.  What  is  a  sufficient  signing1? 

Any  mark  made  with  the  intention  that  it  shall  be  the  signature 
of  the  person,  e.  g.,  initials,  is  a  signing.  Thus,  if  a  witness  writes 
part  of  his  name,  leaving  it  incomplete  intentionally,  and  later 
writes  the  remaining  part,  the  completion  is  a  good  signing. 
Hindmarsh  v.  Charlton,  8  H.  L.  Cases,  160;  Chase  v.  Kittredge,  11 
Alien,  49,  59.  An  acknowledgment  to  the  witnesses  by  a  testator, 
of  his  signature  previously  made,  is  as  good  as  a  signing  in  their 
presence;  Baskin  v.  Baskin,  36  N".  Y.  416;  but  not  so  with  a  witness, 
for  his  signature  is  to  attest  the  execution  of  the  will.  Hindmarsh 
v.  Charlton,  supra;  Chase  v.  Kittredge,  supra. 

f.  Revocation. 

61.  How  may  a  will  be  revoked? 

Here  again  the  statutes  must  be  carefully  examined.  Under  the 
provisions  of  the  Statute  of  Frauds  (chap.  3,  VI)  as  to  the  revoca- 
tion of  wills  of  realty,  to  which  the  statutes  of  the  majority  of 
the  States  conform  without  distinction  between  realty  and  per- 
sonalty, the  following  methods  are  good:  (1)  By  some  other  will 
or  codicil,  in  writing,  or  other  writing  of  the  testator,  signed  in 
the  presence  of  at  least  three  witnesses  (either  expressly  revoking 
the  former  will,  or  inconsistent  with  it);  (2)  By  burning  or  tearing, 
cancelling  or  obliterating  the  will;  and  (3),  not  found  in  that 
statute  but  implied  by  the  courts,  a  revocation  by  a  vital  change  in 
circumstances,  such  as  marriage  and  a  child  born.  See  Schouler 
on  Wills,  §  381;  and  cases  cited  in  succeeding  questions. 

62.  What  two  elements  are  necessary  to  a  revocation  by  burning 
or  tearing? 

They  are:  (1)  An  actual  burning  or  tearing  by  the  testator,  or  at 
his  direction,  of  some  part  of  the  paper,  a  very  little  being  suffi- 

•  The  provisions  of  the  Statute  of  Frauds  on  this  point  are  considerably  altered  by  the 
Wills  Act.  The  date  of  English  cases  is  therefore  important.  In  studying  American 
cases  the  wording  of  the  statutes  under  which  they  arise  should  be  carefully,  even  mi- 
nutely, scrutinized. 


PROPERTY;  EEAL.  325 

cient.  Bibb  v.  Thomas,  2  W.  Bl.  1043;  Dan  v.  Brown,  4  Cow.  483, 
490.  (2)  The  animus  revocandi.  This  must  be  found,  for  revocation 
is  in  its  essence  an  act  of  the  mind,  the  requirement  of  burning 
or  the  like  being  demanded  only  as  an  outward  sign  or  symbol  of 
that  intention.  Schouler  on  Wills,  §  384;  and  cases  just  cited. 

63.  What  is  cancellation? 

The  word  refers  literally  to  the  lattice  effect  produced  by  draw- 
ing lines  back  and  forth  across  a  page.  It  is  clear  that  such  cross 
lines  may  be  a  good  cancellation,  though  the  words  remain  legible; 
and  indeed,  the  extreme  doctrine,  that  the  words  "  This  is  can- 
celled ",  written  on  the  same  page,  are  sufficient,  has  been  laid 
down.  Warner  v.  Warner,  37  Vt.  356.  Contra  to  this,  and  holding 
that  lines  drawn  to  effect  a  concellation,  must  carry  weight  by 
what  they  do,  and  not  by  what  they  .wry.  Ladd's  Will,  60  Wis.  187, 
with  a  discussion  of  the  authorities. 

The  animus  revocandi  is,  of  course,  as  necessary  here  as  with 
burning  or  tearing;  and  it  may.be  remarked  that  cancellation  as 
a  means  of  revocation  is  omitted  from  the  Statute  of  Victoria 
(see  §§  20,  21),  and  from  the  Codes  of  many  States. 

64r.  What  sort  of  change  in  circumstances  will  operate  as  a 
revocation  ? 

The  cases  of  implied  revocation  were  never  numerous,  but 
the  noticeable  case  was  (and  still  is)  that  of  the  will  of  an  unmarried 
man,  who  afterwards  married  and  had  a  child  born.  The  courts 
said  that  they  would  annex  to  the  will  the  tacit  condition,  that  that 
total  change  of  circumstances  should  operate  as  a  revocation,  if  no 
provision  had  been  made  for  the  wife  and  child.  Marston  v.  Fox, 
8  Ad.  &  El.  14.  See  the  statute  books  for  the  present  regulations, 
many  making  marriage  sufficient  of  itself  to  revoke  the  will. 

g.     Probate  and  Administration. 
65.  What  is  an  executor  de  son  tori? 

At  common  law  the  term  was  applied  to  one  who  acted  towards 
the  estate  of  a  deceased  person  as  if  he  were  the  rightful  executor 
or  administrator.  Read's  Case,  5  Co.  67;  s.  c.,  4  Gray,  Gas.  on 
Property,  466.  He  became  liable  to  creditors  to  the  extent  of  the 
value  of  the  goods  he  took  possession  of,  and,  in  general,  held  the 
position  of  an  ordinary  executor,  with  the  exception  that  he  could 
not  retain  from  the  assets  for  any  debt  due  himself.  Alexander  v. 
Lane,  Yelv.  137:  s.  c.,  4  Gray,  Cas.  on  Property,  468;  Oxenham  v. 
Clapp,  2  B.  &  Ad.  309. 

The  modern  rule,  aided  by  statute,  shows  a  regard  to  the  good 
faith  of  the  acts  done,  the  character  of  the  property  dealt  with 
(i.  e.,  whether  perishable  or  otherwise)  and  the  relationship  to  the 


326  QUESTIONS  AND  ANSWERS. 

deceased  of  the  party  so  acting.     Schouler  on  Executors  and  Ad- 
ministrators, §§  188,  189;  Perkins  v.  Ladd,  114  Mass.  420. 

66.  Suppose  A.  dies,  leaving  B.  executor,  and  then  B.  dies 
before  closing  up  A.'s  estate,  but  haves  C.  his  executor.     What 
position,  toward  A/s  estate,  does  C.  hold? 

He  has  no  connection  with  A.'s  estate,  in  most  of  the  States. 
The  Probate  Court  will  appoint  for  A.'s  estate  an  administrator 
de  bonis  non  (administratis),  who  will  carry  on  A.'s  estate,  accord- 
ing to  A.'s  will.  His  full  title  is  administrator  de  bonis  non  cum 
testamento  annexo. 

If  A.  had  died  intestate,  and  his  administrator  had  also  died, 
the  succeeding  appointee  would  have  been  an  administrator 
de  bonis  non.  Schouler  on  Executors  and  Administrators,  §  128. 

67.  Suppose  a  forged  will  is  admitted  to  probate  and  a  debtor 
of  the  estate  pays  his  debt  to  the  executor  under  that  probate. 
Later,  the  true  will  is  brought  to  light  and  probated.     The  new 
executor  tries  to  collect  the  debt  over  again.     Can  he  do  so? 

No.  The  former  executor  was  acting  under  the  order  of  the 
court,  and  if  he  had  sued  the  debtor  the  latter  would  have  had 
to  pay.  Such  payments  must  be  protected,  for  the  person  acting 
for  the  estate  was  an  executor  de  facto,  and  "  every  person  is 
bound  to  pay  deference  to  a  judicial  act  of  a  court  having  competent 
jurisdiction."  Allen  v.  Dundas,  3  Term  Rep.  125;  Kittredge  v. 
Folsom,  8  N.  H.  98. 

68.  What  rights  of  action  survive  a  man's  death  so  that  his 
personal  representative  can  bring  suit  upon  them? 

1.  All  rights  founded  on  contracts  broken  in  the  lifetime  of  the 
deceased,  even  though  relating  to  real  estate.     Raymond  v.  Fitch, 
2  C.  M.  &  R.  588. 

2.  Rights  founded  on  torts  (though  without  an  accompanying 
breach  of  contract),  which  diminished  the  value  of  the  decedent's 
personal  estate,  (by  virtue  of  Stat.  4  Edw.  Ill,  chap.  7).     Baker  v. 
Crandall.  78  Mo.  784;  s.  c.,  47  Am.  Rep.  126.     But  in  both  (1)  and 
(2),  if  the  substance  of  the  injury  was  really  physicial,  as  when  the 
only  injury  to  the  deceased  was  medical  expenses,  or  an  injury  to 
the  feelings,  the  action  does  not  survive.     Chamberlain  v.  William- 
son, 2  M.  &  S.  408  (breach  of  promise);  Wolf  v.  Wall,  40  Ohio  St. 
111.  • 

3.  There  are  various  modern  statutory  enlargements  of  the  com- 
mon-law rule,  the  commonest  of  which  is  that  permitting  recovery 
for  a  wrongful  act,  or  neglect,  causing  death.     In  this  case,  how- 
ever, the  executor  sues  as  trustee  for  the  widow,  children  or  next 
of  kin,  and  not  to  recover  assets  for  creditors.     Whiti'ord  v.  R.  R. 
Co.,  "73  N.  Y.  465:  Richardson  v.  R.  R.  Co.,  98  Mass.  85. 


PROPERTY;  EEAL.  327 

69.  Whaf  is  the  nth  as  to  the  survival  of  claims  against  a  man 
existing  at  the  time  of  his  death? 

At  common  law,  actions  founded  in  contract  survived,  those 
founded  in  tort  did  not.  Schouler  on  Executors  and  Adminis- 
trators, §§  366,  370;  Jenkins  v.  French,  58  N.  H.  532.  But  statutes 
in  many  of  the  States  alter  this,  to  include  at  least  a  recovery  of 
damages  to  the  personal  estate  of  the  plaintiff,  which  are  charge- 
able to  the  deceased.  Schouler  on  Executors  and  Administrators, 
§  373. 

70.  What  is  the  title  by  which  an  executor  holds  the  personal 
property  of  the  deceased?     Is  it  safe  to  buy  of  him? 

An  executor  is  a  "  legal  trustee,"  so  to  speak.  He  holds  the 
title  to  the  estate,  not  in  his  own  right,  but  for  the  benefit  of 
creditors  of  the  deceased,  and  others  entitled;  in  other  words,  his 
own  personal  creditors  cannot  take  the  goods  belonging  to  the  es- 
tate. Farr  v.  Newman,  4  Term  Rep.  621. 

It  is  safe  to  buy  of  him,  because  it  is  within  the  ordinary  line 
of  duty  for  him  to  sell,  in  order  to  pay  the  debts  01  the  deceased. 
To  enable  him,  therefore,  to  sell  readily,  purchasers  must  be  pro- 
tected. Whale  v.  Booth,  4  Term  Rep.  625,  note;  Hutohins  v. 
Bank,  12  Met.  421.  But  notice  that  the  sale  is  not  for  a 
proper  purpose  will  render  the  buyer  liable  to  account  for  the 
property  so  acquired.  Field  v.  Schieffelin,  7  Johns.  Ch.  (N.  Y.)  150; 
Hutchins  v.  Bank,  supra. 

h.     Legacies  and  Devises. 

71.  Define  lapsed  and  void  legacies  and  devises,  and  state  the 
effect  of  their  lapsing  or  being  void. 

A  lapse  occurs  by  the  death  of  the  legatee  or  devisee  before  that 
of  the  testator. 

Void  legacies  or  devises  are  those  which  are  of  no  effect  from 
illegality,  nonexistence  of  a  grantee  competent  to  take,  or  the  like. 

Lapsed  and  void  legacies  go  to  the  residuary  legatee  because  a 
will  of  personalty  speaks  from  the  death  of  the  testator,  and  so 
takes  effect  upon  the  personalty  in  his  possession  at  that  time, 
rather  than  as  it  existed  when  the  will  was  mada  Lapsed  and  void 
devises,  on  the  other  hand,  go  to  the  heirs-at-law,  for  the  reason 
that  in  a  will  of  realty  the  intent  of  the  testator  at  the  date  of  the 
wjll  must  be  considered,  and  that  as  he  has  then  specifically  pointed 
out  someone  other  than  the  residuary  devisee,  the  latter  is  shut 
out.  Tiedeman  on  Real  Property,  §  885;  Greene  v.  Dennis,  6  Conn. 
292 

And  this  distinction  between  realty  and  personalty  is  unfortu- 
nately continued  in  eome  States,  even  where,  by  statute,  a  will  of 
realty  speaks  from  the  death.  Massey's  Appeal,  88  Penn.  St.  470; 


328  QUESTIONS  AND  ANSWERS. 

Van  Cortlandt  v.  Kip,  1  Hill  (N.  Y.),  590.     Contra,  Thayer  v. 
Wellington,  9  Allen,  283;  Drew  v.  Wakefield,  54  Me.  291. 

72.  Explain  the  terms  "  abatement  "  and  "  ademption,"  and 
distinguish  the  latter  from  "  advancement  "  and  "  satisfaction."' 

When  the  property  left  by  a  testator  is  not  sufficient  to  meet 
his  legacies  and  devises  and  also  to  pay  his  debts,  the  question 
arises,  "  Which  legacies  or  devises  shall  be  sacrificed  to  pay  the 
debts?"  or  in  other  words,  "Which  ones  shall  abatef" 

In  the  absence  of  directions  in  the  will  on  the  subject,  the  order 
of  abatement  is  as  follows: 

1.  The  residuary  estate,  including  even  real  estate,  if  realty  and 
personalty  are  blended  by  the  will  into  one  residuary  fund.     (But 
see  Lupton  v.  Lupton,  2  Johns.  Oh.  (N.  Y.)  623;  Gridley  v.  An- 
drews, 8  Conn.  1.) 

2.  General  legacies. 

3.  Specific  legacies  and  devises,  including  residuary  devises,  if 
separated  from  residuary  bequests. 

2  Woerner,  Am.  Law  of  Administration,  §§  451,  452;  Corwine 
v.  Corwine,  24  N.  J.  Eq.  579;  Lewis  v.  Darling,  16  How.  1,  10. 

The  abatement  in  each  of  these  several  classes  is,  of  course,  pro 
raid.  Titus  v.  Titus,  26  N.  J.  Eq.  11 1. 

These  rules  are  not  uniform,  and  the  student  should  examine  the 
statutes  of  his  own  State. 

An  ademption  or  "  taking  away  "  of  a  legacy  takes  place  when, 
(on  account  of  the  occurrence  of  certain  events),  it  has  either  be- 
come impossible  to  carry  out  the  directions  of  the  will,  or. the 
courts  presume  a  change  of  intention  on  the  part  of  the  testator, 
and,  therefore,  disregard  the  will  in  that  particular.  Thus,  if  X. 
gives  Y.  by  will  his  k<  horse,  Ned,"  and  subsequently  X.  sells  that 
horse  or  the  horse  dies,  the  legacy  is  adeemed.  There  is  nothing 
left  upon  which  the  will  can  operate.  Harvard,  etc.  v.  Tufts,  151 
Mass.  76;  Blackstone  v.  Blackstone,  3  Watts  (Penn.),  335. 

The  above  is  an  ademption  of  a  specific  legacy  and  is  wholly 
independent  of  the  motive  or  intention  of  the  testator.  When, 
however,  the  will  gives  a  certain  sum  of  money  and  the  testator,  sub- 
sequently, in  his  lifetime,  makes  a  gift  to  the  legatee,  it  is  entirely 
a  question  of  his  intention  whether  the  legacy  is  adeemed  or  not. 
If  the  testator  is  in  loco  parcntis  to  the  legatee  and 
the  gift  is  of  the  same  nature  as  the  legacy,  or  is 
made  to  accomplish  a  specific  purpose  named  as  the  object 
of  the  testamentary  gift,  it  is  held  that  this  sihows  the  testator's 
intention  to  anticipate  either  wholly  or  pro  tanto  the  gift  in  the 
will;  the  court  presumes  that  one  in  loco  parentis  means  to  treat 
alike  all  those  to  whom  he  owes  the  parental  duty,  and  intends  the 
gift  inter  vivos  to  be  in  lieu  of  the  legacy  and  not  in  addition  to  it. 
Langdon  v.  Astor,  16  N.  Y.  9;  Eichards.  v.  Humphreys,  15 
Pick.  133. 


PROPERTY;  REAL.  329 

"  Advancement,"  when  correctly  used,  means  a  gift  made  under 
similar  circumstances,  except  that  the  gift  is  substituted  for  the 
share  to  which  the  donee  would  be  entitled  as  distributee  on  the 
death  of  the  donor  intestate.  Johnson  v.  Belden,  20  Conn.  324. 

"  Satisfaction,"  which  is  often  used  to  describe  what  is  really  an 
ademption,  properly  refers  to  a  gift  by  will  by  which  a  person  ex- 
tinguishes a  prior  obligation.  To  this,  of  course,  the  consent  of  the 
other  party  to  the  obligation  is  essential,  which  is  not  true  of  an 
ademption.  In  the  latter,  since  a  will  creates  no  obligation  what- 
ever, the  testator  is  only  exercising  his  power  to  do  as  he  chooses 
with  his  own,  while  in  the  former  he  is  doing  what  he  is  already 
bound  to  do,  but  in  a  different  way,  and  subject  to  the  assent  of  his 
obligee.  1  Pom.  Eq.  Jur.,  §  524. 

VI.  MISCELLANEOUS    TOPICS;    INCLUDING    FIXTURES    ANE 
MORTGAGES. 
a.    Fixtures. 

73.  What  is  a  fixture? 

A  satisfactory  definition  is  admittedly  almost  impossible,  for  th\ 
cases  use  the  term  in  so  many  different  senses.  Bouvier's  is  as  fol- 
lows (and  is  substantially  that  given  by  Baron  Parke  in  Hallen  v. 
Eunder,  1  C.  M.  &  E.  266):  "  Personal  chattels  affixed  to  real  es- 
tate, which  may  be  severed  and  removed  by  the  party  who  hai 
affixed  them  or  by  his  personal  representatives,  against  the  will  of 
the  owner  of  the  freehold."  This  points  out  the  salient  feature 
essential  to  a  fixture,  viz.,  that  it  be  annexed  but  removable,  and 
so  is  perhaps  as  acceptable  a  description  as  there  is,  although  in 
many  cases  there  is  talk  of  fixtures  as  if  there  were  two  classes, 
those  removable  and  those  not  removable.  Articles  not  re- 
movable are  real  estate  and  nothing  else. 

Whether  fixtures  are  real  or  personal  estate  has  been  much  diS' 
cussed,  especially  in  regard  to  those  annexed  by  a  tenant  for  years.  The 
most  acceptable  result  is  probably  that  they  are  real  estate  while  af- 
fixed, and  that  the  right  of  the  tenant  to  remove  them  is  a  right  to  turn 
the  real  estate  of  the  landlord  into  personal  estate  of  the  tenant,  during 
the  term.  Hallen  v.  Runder.  supra. 

Though  this  right  can  be  attached  on  fieri  facias  (Poole's  Case,  1  Salk. 
368),  the  sale  of  it  is  not  a  sale  of  real  estate,  for  the  real  estate  belongs 
to  the  landlord.  Neither  is  it  a  sale  of  personal  estate,  because  the 
chattels  are  annexed  and  have,  temporarily  at  least,  lost  thereby  their 
character  as  goods  and  chattels.  Mackintosh  v.  Trotter,  3  M.  &  W. 
184.  But  see  Bostwick  v.  Leach,  3  Day  (Conn.!,  476. 

74.  Upon  what  circumstances  does  the  removability  of  a  thing 
attached  to  the  freehold  depend? 

It  is  a  question  of  the  intention  of  the  person  who  annexed 
them,  though  sometimes,  as  when  bricks  are  built  into  a  house, 


330  QUESTIONS  AND  AXSWEES. 

the  fact  that  removal  would  involve  a  reduction  into  materials 
settles  conclusively  that  the  intention  was  to  make  a  permanent 
addition  to  the  realty.  Whitehead  v.  Bennett,  27  L.  J.  Ch.  474. 

The  leading  considerations  are  the  character  of  the  article  an- 
nexed and  the  use  to  which  it  is  put,  the  mode  of  annexation,  and 
the  relation  to  the  land  held  by  the  party  annexing,  i.  e.,  whether 
owner  in  fee  or  tenant.  For  example,  if  the  question  arises  between 
mortgagor  in  possession  and  mortgagee  (on  a  foreclosure)  as  to 
annexations  made  before  the  mortgage,  the  advantage  is  with  the 
mortgagee,  for  articles  so  affixed  to  the  freehold  were  probably  for 
its  permanent  improvement:  and  the  same  advantage  holds  for  the 
heir  against  the  executor,  or  the  vendee  against  the  vendor.  Crane 
v.  Brigham,  11  N.  J.  Eq.  29. 

On  the  other  hand,  if  the  party  annexing  is  a  tenant  only,  the 
advantage  is  with  him,  for  there  is  ever}7  reason  to  think  he  wishes 
to  subserve  his  own  convenience  rather  than  enhance  the  value  of 
the  realty.  Capen  v.  Peckham,  35  Conn.  88.  (Both  cases  give  a 
general  discussion.) 

75.  In  what  classes  of  cases  is  removal  of  articles  annexed  to 
the  land  most  freely  allowed? 

In  cases  arising  between  landlord  and  tenant;  (a)  where  the  an- 
nexation has  been  for  purposes  of  domestic  use  or  convenience; 
Grymes  v.  Boweren,  6  Bing.  437;  Vaughen  v.  Haldeman,  33  Penn. 
St.  522;  and  (b)  where  the  annexation  has  been  for  purposes  of 
trade.  The  latter  is  the  largest  exception  to  the  general  rule  and 
is  based  partly  on  the  presumption  that  the  tenant  intended  only  a 
temporary  attachment,  and  partly  on  the  public  policy  of  fostering 
the  growth  and  development  of  trade.  It  includes  such  articles  as 
vats,  some  kinds  of  engines,  counters,  and  the  like,  and  is  a  doctrine 
universally  recognized.  Van  Ness  y.  Pacard,  2  Pet.  137;  Guthrie 
v.  Jones,  108  Mass.  191.  But  if  severance  wijl  necessitate  material 
injury  to  the  freehold,  no  removal  is  allowable.  Buckland  v.  But- 
terfield,  2  Brod.  &  B.  54  (conservatory  attached  to  a  house);  1  'Wash- 
burn  on  Real  Property,  p.  148. 

In  all  cases  the  removal  must  oe  made  before  the  expiration  of 
the  lease,  or  within  a  reasonable  time  thereafter  if  it  ends  at  a  time 
not  previously  determinable,  e.  g.,  the  death  of  a  tenant  for  life. 
Tiedeman  on  Real  Property,  §  7,  and  notes;  Torrey  v.  Burnett,  38 
K  J.  Law,  457;  Watriss  v.  Bank,  etc.,  124  Mass.  571. 

b.    Mortgages. 

76.  Under  the  strict  rules  of  the  common  law,  what  was  the 
relation  of  the  mortgagor  and  mortgagee  as  to  the  land  mort- 
gaged?    What  is  it  now? 

At  common  law  a  mortgage  furnished  a  perfect  example  of  a 
condition  subsequent.  The  full  legal  title  was  vested  in  the  mort- 


PROPERTY;  REAL.  331 

gagee,  subject  only  to  be  divested  by  the  performance  of  the 
condition  by  the  mortgagor.  The  latter  held  only  a  sort  of 
reversionary  interest,  conditional  upon  his  payment  of  the  debt 
or  performance  of  the  obligation  to  secure  which  the  transfer  was 
made,  on  or  before  the  "  law  day,"  or  time  limited  for  so  doing. 
Upon  his  failure  to  so  act,  the  mortgagee's  estate  instantly  became 
absolute,  in  spite  of  any  accident  or  mistake,  and  even  if  the  value 
of  the  land  was  far  in  excess  of  the  mortgage  debt.  Tiedeman  on 
Eeal  Property,  §§  296,  299;  2  Washburn  on  Real  Property,  pp.  96, 
100. 

Their  present  relation  grows  out  of  the  recognition  by  courts  of 
equity  of  the  real  nature  of  the  transaction,  viz.,  that  it  is  merely  a 
security  for  the  doing  of  the  act  named  as  the  condition.  Equity, 
in  view  of  the  facts  of  the  case  and  the  frequent  harshness  with 
which  the  rules'  of  law  operated,  introduced  a  system  of  its  own, 
which  protected  the  interests  of  the  mortgagor,  while  doing  no  in- 
justice to  the  mortgagee.  This  was  by  allowing  the  former,  after 
breach  of  the  condition  named  in  the  mortgage,  to  redeem  the  land 
"by  payment  of  the  debt  with  interest.  Being  recognized  only  in 
courts  of  equity  this  right  was  known  as  the  equity  of  redemption. 
Tiedeman,  supra,  §§  299,  300;  2  Washburn  on  Real  Property,  p.  97, 

In  the  various  States,  various  positions  are  taken,  the  divergence 
being  due  to  the  different  degrees  in  which  the  equitable  treatment 
of  the  case  has  forced  itself  upon  the  law  courts.  In  Xe\v  England, 
Xew  Jersey,  Alabama  and  some  other  States,  a  mortgage  is  still  re- 
garded as  actually  conveying  the  legal  title  of  the  land.  In  nu- 
merous other  States,  headed  by  Xew  York  and  California,  it  is  held 
to  create  a  lien  only.  Tiedeman  on  Real  Property,  §  301.  The 
statutes  and  decisions  of  each  State,  however,  must  be  studied,  to 
find  the  exact  stage  of  development  there  prevailing. 

77.  X.,  who  owed  Y.  a  sum  of  money,  conveyed  Blackacre  to 
him  by  an  absolute  deed.  There  was  a  verbal  understanding 
that  if  X.  paid  the  debt  within  a  year,  Y.  should  retransfer  the 
land.  Some  weeks  after  the  year  expired,  X.  made  tender  of  the 
debt,  with  interest,  and  demanded  a  conveyance.  Y.  refused  to 
comply.  May  the  facts  of  the  transaction  be  shown  ? 

It  is  well  settled  that  they  may  in  spite  of  the  "  parol  evidence  " 
rule,  and  irrespective  of  fraud,  mistake  or  accident,  the  ordinary 
grounds  for  equitable  action.  Any  legal  evidence,  written  or  verbal. 
may  be  used,  the  object  being  to  "  look  through  the  forms  of  a 
transaction  and  give  effect  to  it,  so  as  to  cam-  out  the  substantial 
intent  of  the  parties."  Horn  v.  Keteltas,  46  K  Y.  605;  Sweet  v. 
Parker,  22  X.  J.  Eq.  453. 

Such  an  arrangement  is  frequently  hard  to  distinguish  from 
an  agreement  that  the  grantor  of  land  may  repurchase.  If  the 
grantor  remains  in  possession  and  pays  interest  on  the  sum  due 
the  grantee,  it  is  strong  evidence  that  the  deed  is  intended 


332  QUESTIONS  AND  ANSWERS. 

as  security  only.  But  if  these  elements  are  absent,  or  if 
other  evidence  overbalances  them,  the  effect  of  the  transaction, 
will  be  an  absolute  conveyance  with  a  contract  for  repurchase. 
Obviously,  in  the  latter  case,  the  grantor  is  in  a  less  advantageous, 
position,  for  there  is  no  "  equity  of  redemption  "  after  the  stipu- 
lated time  passes,  and  he  must  also  show  an  agreement  satisfying 
the  Statute  of  Frauds  to  enable  the  court  to  compel  a  reconveyance. 
Tiedeman  on  Eeal  Property,  §§  304,  305,  307;  Hogan  v.  Jaques,  19 
N.  J.  Eq.  124,  128.  It  should  be  noted  that  in  a  few  States  parol 
proof  to  show  an  absolute  deed  was  intended  as  a  mortgage  is  only 
admitted  when  fraud,  accident  or  mistake  appear.  Tiedeman, 
supra;  Brainerd  v.  Brainerd,  15  Conn.  575.  But  see  French  v. 
Burns,  35  Conn.  359. 

78.  What  is  the  meaning  of  the  maxim,  "  Once  a  mortgage, 
always  a  mortgage  "  ? 

It  refers  especially  to  cases  where  the  parties  have  agreed,  on  the 
execution  of  a  mortgage  (or  subsequently),  that  title  shall  vest  abso- 
lutely in  the  mortgagee,  if  the  debt  is  not  paid  at  the  time  it  becomes 
due  by  the  terms  of  the  deed.  In  short,  they  endeavor  to  bargain 
away  the  protection  of  the  equity  of  redemption.  Such  an  agree- 
ment is  unenforceable.  The  possibilities  for  duress  and  oppression, 
arising  from  the  embarrassed  condition  of  the  mortgagor,  are  so- 
great  that  courts  of  equity  refuse  to  recognize  the  validity  of  agree- 
ments of  the  kind  described.  Henry  v.  Davis,  7  Johns.  Ch.  (X.  Y.) 
40;  Bailey  v.  Bailey,  5  Gray,  505. 

79.  X.  mortgages  his  land  to  Y.     Y.  dies,  and  X.  pays  up  the 
debt.     Who  gives  the  release  of  the  mortgage,  Y.'s  administrator 
or  his  heir? 

At  common  law,  since  the  time  of  Charles  II,  the  mortgage  has 
been  considered  as  personal  assets,  and  as,  therefore,  going  to  the 
executor;  but  the  title  to  the  land  was  held  to  vest  in  the  heir  as 
trustee  for  the  personal  representative.  2  Washburn  on  Real  Prop- 
erty, p.  141.  The  equitable  doctrine,  however,  has  been  so  far 
developed  that  even  in  the  States  holding  that  the  mortgagee  is  the 
owner  of  the  legal  title,  his  heir  is  shut  out.  A  conveyance  from 
him  transfers  nothing,  and  land  acquired  by  a  mortgagee's  ad- 
ministrator, under  foreclosure,  is  distributed  as  personalty.  Taft 
v.  Stevens,  3  Gray,  504;  Pierce  v.  Brown,  24  Vt.  165. 

In  New  York  and  the  States  following  it  in  holding  the  mortgage 
a  lien  only,  the  heir  of  th'e  mortgagee,  of  course,  takes  nothing 
whatever. 

80.  What  sort  of  property  is  the  equity  of  redemption  ? 

As  its  name  implies,  and  as  explained  above,  it  was  originally  re- 
cognized only  in  equity.  At  present,  it  is  almost  everywhere  held 


PROPERTY;  EEAL.  333 

to  have  all  the  qualities  of  a  legal  estate,  such  as  liability  to  sale 
on  execution;  White  v.  Whitney,  3  Met.  81,  84;  Punderson  v. 
Brown,  1  Day,  98;  dower  to  the  wife  of  the  mortgagor;  Hinchman  v. 
Stiles,  9  N.  J.  Eq.  454;  and  the  like.  And  see  Norwich  v.  Hubbard, 
22  Conn.  587. 

81.  How  does  a  mortgagee  realize  upon  the  security,  if  the  debt 
is  not  paid? 

As  explained  above  (No.  76),  at  common  law  the  mortgagee's 
title  became  absolute  if  the  debt  was  not  paid  by  the  time  set. 
Under  the  equitable  rule,  however,  a  foreclosure  is  necessary  to 
fix  the  additional  time  thus  available  to  the  mortgagor.  At 
present  the  two  commonest  kinds  of  foreclosure  are  known  re- 
spectively as  strict  foreclosure  and  equitable  foreclosure. 

By  the  former  a  decree  is  passed  forever  barring  the  mortgagor 
from  making  redemption  unless  he  does  so  within  a  time  named. 
This  is  obviously  nothing  but  a  more  or  less  lenient  application  of 
the  common-law  rule,  and  renders  the  title  of  the  mortgagee  abso- 
lute in  the  same  way.  Brainerd  v.  Cooper,  10  N.  Y.  456;  2  Wash- 
burn  on  Real  Property,  pp.  237,  238. 

By  equitable  foreclosure  the  land  is  sold,  in  a  manner  varying  in 
"the  different  States,  and  the  proceeds  applied  to  the  satisfaction  of 
the  debt.  The  surplus,  if  any,  belongs  to  the  mortgagor.  See  a 
long  note.  2  Washburn  on  Real  Property,  at  the  end  of  book  1, 
chap.  16,  giving  a  summary  of  the  process  of  each  State. 

c.    Emblements. 

82.  X.  is  tenant  for  the  life  of  Y.     He  plants,  during  the 
spring,  a  field  of  corn.     Earlu  in  the  summer  his  estate  is  termi- 
nated by  the  death  of  Y.     May  he  enter  thereafter  to  take  the 
corn  ?     And  may  he  take  fruits  which  were  ripening  when  his  es- 
tate ended? 

X.  may  enter,  until  the  following  spring,  to  care  for  and  gather 
the  corn,  but  not  to  take  the  product  of  the  fruit  trees.  Crops 
which  require  care  and  labor  (fnicttis  industrialcs),  and  which  have 
been  planted  by  the  tenant  of  an  estate  of  uncertain  duration  (ex- 
cept estates  at  sufferance),  but  not  harvested  when  the  estate  is  ter- 
minated, are  called  emblements.  He  is  allowed  to  enter  and  gather 
such  crops,  both  because  he  could  not  foresee  the  end  of  his  es- 
tate, and  to  encourage  husbandry  by  insuring  to  him  the  results  of 
his  exertions.  1  Washburn  on  Real  Property,  bk.  1,  chap.  V,  §  3; 
Debow  v.  Colfax,  5  Halst.  128.  The  rule  applies  only  to  crops 
which  are  ordinarily  of  annual  growth.  Graves  v.  Weld,  5  B.  &  Ad. 
105. 

But  these  considerations  do  not  apply  to  those  products  requiring 
no  cultivation,  such  as  fruits.  See  1  Washburn,  supra. 


334  QUESTIONS  AND  ANSWERS. 

d.    Ejectment. 

83.  Describe  the  action  of  ejectment. 

This  is  of  the  class  of  mixed  actions;  that  is,  by  it  the  possession 
of  land  is  recovered,  and  also  damages  for  t>e  period  during  which 
the  injured  party  has  been  ousted. 

In  its  origin  this  action  was  used  by  a  tenant  for  years  to  recover 
possession  of  his  term  when  he  had  been  ejected:  but  from  its  sim- 
plicity compared  with  common  law  "  real "  actions  it  was  applied 
to  the  purpose  of  trying  title  to  the  premises  by  the  following 
process:  The  claimant  X.  would  make  an  entry  on  the  land,  and 
there  make  a  lease  to  Y.,  who  would  remain  until  ejected  by  the 
person  in  possession  or  by  a  casual  ejector,  Z.  Y.  would  then  sue  the 
one  who  had  thrown  him  out.  To  succeed  he  must  show  four 
things;  title  in  X.,  lease  to  himself,  entry  and  ouster.  The  title  of 
the  claimant  was  thus  brought  necessarily  though  incidentally  into 
issue. 

Before  long,  the  formal  entry,  lease  and  ouster  were  found  cum- 
bersome and  were  given  up.  An  action  was  brought  by  X.  against 
the  casual  ejector  in  the  form,  Y.  on  the  demise  of  X.  v.  Z.,  ^ut 
Y.  and  Z.  and  the  entry,  lease  and  ouster  were  fictitious.  To  bring; 
in  the  real  defendant  notice  was  sent  him  in  ^be  name  of  Z.,  stating 
that  Z.  had  been  sued  and  that  judgment  would  be  entered  up  unless 
he  paid  attention  to  the  warning  and  came  in  to  defend.  The 
court,  on  his  confessing  the  lease  from  X.  to  Y.,  and  Y.'s  entry  and 
ouster,  admitted  him  as  a  co-defendant,  and  the  question  of  the  title 
of  X.  thus  became  the  only  issue.  Later,  the  interposition  of  Z.  fell 
into  disuse,  and  the  suit  was  brought  directly  against  the  real  de- 
fendant. The  cardinal  rule,  governing  the  action,  is  that  the  plain- 
tiff must  recover  by  the  strength  of  his  own  title  rather  than  by  the 
weakness  of  the  defendant's:  for  mere  possession  is  suflVient  against 
anything  but  a  superior  title.  See  3  Bl.  Com.  199-20P:  1  Chitty 
on' Plead.  187,  ff. 

e.    Waste. 

84.  What  is  waste  ? 

Liability  for  waste  attaches  to  a  tenant  for  life  or  years  in  favor 
of  the  remainderman  or  reversioner,  and  accrues  on  his  doing  or 
suffering  to  be  done  upon  the  premises  that  which  *'  does  a  lasting 
damage  to  the  freehold  or  inheritance,  and  tends  to  the  permanent 
loss  of  the  owner  in  fee."  1  Washburn  on  Seal  Property,  p.  140. 
Originally,  estates  in  dower  or  curtesy  were  the  only  ones  subject 
to  i,t,  the  theory  being  that  as  the  law  created  those  estates  it  ought 
to  protect  the  owners  of  future  estates. 

Waste  is  either  voluntary,  as  by  tearing  down  a  house,  or  per- 
missive, as  by  allowing  it  to  go  to  decay  for  want  of  repair,  and  at 
common  law  it  extended  to  any  alteration,  such  as  taking  out  a  par- 
tition or  changing  woodland  into  meadow.  Whether  the  inheritance 
has  suffered  is,  however,  a  pure  question  of  fact,  and  the  application 


PROPERTY;  REAL.  335 

of  the  rule  varies  with  the  location  of  the  premises,  their  condition 
and  local  usage.  Clearing  land  of  timber,  for  example,  would  in 
some  cases,  be  necessary  for  good  husbandry.  A  tenant  who  has 
been  freed  from  the  restriction  is  said  to  hold  "  without  impeach- 
ment of  wasta."  See  on  the  whole  subject,  1  "Washburn  on  Real 
Property,  bk.  1,  chap.  V,  §  4  (summary  of  statutes,  p.  15T.  note); 
Agate  v.  Lowenbein,  57  N.  Y.  604;  Keeler  v.  Eastman,  11  Vt.  293. 
Damages  now  are  generally  limited  to  actual  loss  suffered,  and  if 
irreparable  injury  is  threatened,  equity  will  grant  an  injunction  to 
restrain  the  tenant.  1  Washburn,  supra,  p.  160,  and  cases. 

• 

f.    Eviction. 

85.  Give    the    difference    between    actual    and    constructive 
eviction. 

Actual  eviction  consists  in  physically  depriving  the  tenant  of  his 
estate,  either  in  whole  or  in  part. 

Constructive  eviction  takes  place  when  the  landlord  does  some 
act  which  tends  to  render  the  leasehold  untenantable,  or  which 
will  prevent  its  being  used  for  the  purposes  for  which  it  was  leased, 
but  does  not  corporeally  deprive  the  tenant  of  the  land.  Gilhooley 
v.  Washington,  4  N".  Y.  217;  Dyett  v.  Pendleton,  8  Cow.  727;  Bart- 
lett  v.  Farrington,  120  Mass.  284. 

86.  State  the  effect  upon  the  tenant's  liability  to  pay  rent,  of 
an  eviction  by  the  landlord  and  an  eviction  by  a  stranger. 

The  following  rules  are  said  by  Washburn  to  govern:  "  If  there 
has  been  an  eviction  from  the  whole  premises  by  the  lawful  act  of  a 
stranger,  the  whole  rent  of  the  premises  is  suspended.  If  such 
eviction  be  from  a  part  only  of  the  premises,  the  rent  will  be  ap- 
portioned and  a  part  suspended,  according  to  the  relative  value  of 
the  premises  from  which  the  tenant  is  evicted.  But  if  the  eviction 
be  by  act  of  the  lessor,  or  by  his  procurement  and  authority,  the 
rent  of  the  entire  premises  will  be  suspended  while  such  eviction 
continues,  whether  it  be  of  the  whole  premises,  or  of  a  part  of 
them."  (And  on  such  eviction  by  the  lessor  the  tenant  has  also  the 
option  to  terminate  the  lease  entirely.)  1  Washburn  on  Real  Prop- 
erty, p.  533;  Leishman  v.  White,  1  Allen,  489. 


336  QUESTIONS  AND  ANSWERS. 

VII.    RESTRAINTS  ON  ALIENATION. 

1.  A  devised  land  to  B.  for  life,  with  the  condition  that  if  B. 
alienated,  the  land  should  go  to  C.  in  fee,  and  with  the  condition 
that  if  C.  alienated,  the  land  should  revert  to  A.  B.  conveyed  to 
D.,  who  shortly  after  obtained  a  conveyance  from  C.  also.  What  in- 
terests do  A.  and  D.  take? 

A.  takes  nothing.  D.  takes  a  fee  simple.  The  law  upholds  pro- 
visions for  forfeiture  or  for  a  gift  over  upon  alienation  when  im- 
posed on  a  life  estate.  Hurst  v.  Hurst,  L.  R.,  21  Gh.  Div.  278; 
Bull  v.  Kentucky  Bank,  90  Ky.  452;  Waldo  v.  Cummings,  45  {11. 
421.  Such  provisions  are  good  as  applied  to  involuntary  as  well 
as  to  voluntary  alienation,  for  a  testator  has  power  "to  declare 
effectually  that  the  bequest  shall  cease  on  the  happening  of  an  event 
which  would  subject  it  to  the  claims  of  creditors  and  then  to  give 
it  a  different  direction."  Comstock,  J.,  in  Bramhall  v.  Ferris,  14 
X.  Y.  41.  This  rule,  as  shown  by  the  foregoing  authorities,  ap- 
plies alike  to  realty  and  to  personalty.  Accordingly  B.'s  convey- 
ance to  D.  was  invalid  and  the  effect  of  it  was  to  vest  the  fee  in  C. 
C/s  conveyance  to  D.,  however,  passed  the  fee  to  D.,  for  the  for- 
feiture clause  which  was  attached  to  C.'s  estate  was  invalid.  In 
the  case  of  a  fee  simple  a  general  and  unlimited  condition  of  for- 
feiture upon  alienation  cannot  be  imposed.  In  re  Dugdale,  L.  R., 
38  Ch.  Div.  176;  Potter  v.  Couch,  141  U.  S.  296.  This  again  ap- 
plies to  personalty,  except  chattels  real,  as  well  as  to  realty.  Brad- 
ley v.  Peixoto,  31  Ves.  Jr.  324.  Hence  C.,  having  an  alienable 
fee,  has  conveyed  to  D.  validly. 

In  general  it  may  be  said  that  the  closer  the  relation  between  the 
grantor  and  grantee  the  more  readily  provisions  for  forfeiture  upon 
alienation  are  upheld.  Thus,  in  the  case  of  a  lease,  where  the  close 
relation  of  landlord  and  tenant  exists,  such  provisions  are  extremely 
common  and  their  validity  is  perfectly  settled.  "  It  is  reasonable  that 
a  landlord  should  exercise  his  judgment  with  respect  to  the  person  to 
whom  he  intrusts  the  management  of  his  estate."  Ashurst,  J.,  in  Roe 
d.  Hunter  v.  Galliers,  2  T.  R.  133.  As  noted  above,  such  provisions  are 
good  in  the  case  of  life  interests,  and  they  are  also  valid  as  applied 
to  estates  tail.  Gray,  Restraints  on  Alienation  (2d  ed.),  §  75.  The  con- 
dition is,  however,  destroyed  if  the  entail  is  barred  by  a  common  re- 
covery, and  a  provision  restraining  the  suffering  of  a  recovery  is  invalid. 
Dawkins  v.  Lord  Penrhyn,  L.  R.,  6  Ch.  Div.  318. 

Where  the  estate  is  a  fee  provisions  for  forfeiture  are  sometimes  held 
to  take  effect  in  special  cases.  Provisions  which,  while  permitting  alien- 
ation, restrict  tlie  persons  to  whom  the  estate  can  be  alienated,  have 
been  upheld,  even  where  the  restriction  was  a  very  sweeping  one.  Doe 
d.  Gill  v.  Pearson,  6  East.  173;  see  Jauretche  v.  Proctor,  48  Pa.  St..  at 
p.  472  Other  authorities  turn  on  the  degree  of  the  restriction:  "the 
test  is  whether  the  condition  takes  away  the  whole  power  of  aliena- 
tion substantially ;  it  is  a  question  of  substance  and  not  of  mere  form." 


REAL  PROPERTY.  337 

In  re  Macleay,  L,.  R.,  20  E<I.  Cas.  186,  at  p.  189.  Some  courts  ap- 
.parent ly  will  not  enforce  the  condition  under  any  circumstances. 
Schermerhoru  v.  Negus,  1  Deuio  (X.  Y.),  448;  Williams  v.  Jones,  'i 
Swan  (Tenn.),  620. 

It  is  sometimes  said  that  even  in  case  of  a  fee  a  clause  of  forfeiture 
on  alienation  will  be  enforced  if  it  is  limited  in  time,  as  by  a  restriction 
to  cases  of  alienation  within  twenty  years  or  within  A.'s  life.  Pearson 
v.  Dolman,  L.  It.,  3  Eq.  Cas.  315.  The  weight  of  authority  is,  howevar, 
to  the  contrary.  Potter  v.  Couch,  141  U.  S.  296;  In  re  Kosher,  26  Ch. 
Div.  801 ;  to  same  effect  where  the  restraint  was  absolute  with  no  clause 
of  forfeiture,  Mandlebamn  v.  McDonnell,  2!)  Mich.  78.  Similarly,  in 
case  of  a  fee,  where  a  forfeiture  clause  is  aimed  not  at  alienation  in 
general,  but  merely  at  alienation  in  certain  specified  ways,  it  has  been 
held  that  this  limitation  made  the  clause  valid.  See  Jessel,  M.  R.,  la 
re  Macleay,  L.  R.,  20  Eq.  Cas.  186,  at  p.  189.  Such  is  not,  however, 
generally  accepted  law.  Gray,  Restraints  on  Alienation  (2d  ed.),  §  55 
et  seq.;  Ware  v.  Cann,  10  B.  &  C.  433. 

2.  The  owner  of  land  conveyed  to  trustees  to  the  use  of  A.  for 
life,  until  he  should  voluntarily  or  involuntarily  alienate;  then  to 
the  use  of  B.  in  fee,  and  if  B.  died  without  having  alienated,  then 
to  C.  in  fee.  A.  was  adjudicated  a  bankrupt  and  shortly  after  B. 
died  intestate,  A.  being  still  alive.  To  whom  does  the  land  go? 

The  heirs  at  law  of  B.  get  a  fee  simple.  A.'s  interest  being  a 
life  estate,  the  forfeiture  clause  is  good  and  takes  effect  as  soon  as 
titio  passes  to  A.'s  trustee  in  bankruptcy.  Camp  v.  Cleary,  76  \Ta. 
140 ;  p.  336,  supra. 

Upon  B.'s  death  the  forfeiture  clause,  if  valid,  would  operate  to 
carry  his  fee  to  C.  But  the  effect  of  the  restraint  on  the  estate  in 
B.'s  hands,  if  valid,  would  be  to  prevent  his  devising  his  fee,  and 
equally  to  prevent  its  descent  according  to  the  laws  of  devolution  in 
case  of  his  death  intestate.  Both  these  results  are,  by  the  weight 
of  authority,  held  to  be  illegal,  as  an  attempt  to  give  a  fee,  and  at 
the  same  time  to  withhold  two  of  the  chief  incidents  of  a  fee, — 
namely,  the  capacity  to  be  devised  and  to  be  inherited.  Holmes  v. 
Godson,  8  De  G.  M.  &  G.  152;  Theobald,  Wills  (5th  ed.),  p.  550; 
Van  Home  v.  Campbell,  100  N.  Y.  287.  In  Holmes  v.  Godson, 
supra,  Turner,  L.  J.,  said : 

"  *  *  *  The  law,  which  is  founded  on  principles  of  public 
policy  for  the  benefit  of  all  who  are  subject  to  its  provisions,  has  said 
that  in  the  event  of  an  owner  in  fee  dying  intestate  the  estate  shall  go 
to  his  heir,  and  this  disposition  tends  strictly  to  contravene  the  law, 
and  to  defeat  the  policy  on  which  it  is  founded.  Cn  principle, 
therefore,  I  think  the  disposition  bad.  It  is  plain,  on 

looking  at  the  cases,  that  if  a  man  says  the  estate  shall  go  over  i 
you  do  not  dispose  of  it  by  deed,  he  says,  yo"  shall  not  have  that 
power  which  the  law  gives  of  disposition  by  will." 
?2 


338  QUESTIONS  AND  ANSWERS. 

Accordingly,  in  the  case  supposed,  the  forfeiture  clause  is  in- 
valid and  the  estate  consequently  descends  to  the  heirs  of  B. 

In  connection  with  clauses  of  forfeiture  upon  bankruptcy  or  other 
involuntary  alienation  the  distinction  should  be  noted  between  such 
cases  and  cases  where  a  grantor  attempts  to  provide  that  a  life  estate 
shall  not  be  subject  to  the  claims  of  the  grantee's  creditor.  "  There  is 
an  obvious  distinction  between  a  disposition  to  a  man  until  he  becomes 
a  bankrupt  and  then  over,  and  an  attempt  to  give  him  property  and 
to  prevent  his  creditors  from  obtaining  any  interest  in  it  although  it  is 
his."  Lord  Eldon  in  Brandon  v.  Robinson,  18  Yes.  Jr.  429.  The  latter 
class  of  limitation  is  good  only  in  the  equitable  life  estates  known  as 
"  spendthrift  trusts."  See  p.  340,  infra. 

It  is  held  to  be  violative  of  public  policy  and,  therefore,  void  for  a 
man  to  settle  property  upon  himself  with  a  limitation  over  upon  his 
bankruptcy,  etc.  Higinbotham  v.  Holme,  19  Yes.  Jr.  87;  Synge  v.  Synge, 
4  Ir.  Ch.  N.  S.  337.  But  "  a  variety  of  cases  *  *  *  have  estab- 
lished that,  though  there  cannot  be  a  settlement  of  the  husband's  own 
estates  so  as  to  make  his  life  interest  cease  in  the  event  of  his  becom- 
ing a  bankrupt,  *  *  *  yet  the  wife's  estate  may  be  so  settled." 
Shadwell,  Y.  C.,  in  Lester  v.  Garland,  5  Sim.  205.  While  it  is  thus 
settled  that  a  man  cannot  limit  property  to  himself  to  go  over  on  hia 
involuntary  alienation,  the  law  is  in  conflict  where  the  gift  over  is  con- 
ditioned on  his  voluntary  alienation.  See  Phipps  v.  Ennismore,  4  Russ. 
131 ;  Knight  v.  Browne,  30  L.  J.  Ch.  649. 

3.  A.  settled  money  on  trustees  to  accumulate  the  income  and  to 
pay  it,  together  with  the  principal,  to  his  son,  B.,  ichen  he  should 
reach  twenty-five  and  not  before.  A.  settled  a  similar  sum  in  trust 
for  his  wife,  C.,  providing  that  she  should  receive  the  income  but 
not  the  principal,  and  should  have  no  power  to  anticipate  or  to 
convey  her  interest.  A.  died  when  B.  was  nineteen.  Two  years 
later  B.  became  bankrupt  and  C.  thereupon  conveyed  for  value  all 
her  interest  to  his  trustee  in  bankruptcy  for  the  benefit  of  his  cred- 
itors. What  interests  do  the  creditors  get? 

They  get  the  entire  interests  of  both  B.  and  C.  Here  \ve  are 
dealing  riot  with  forfeiture  or  gifts  over  upon  alienation,  but  with 
absolute  prohibition  on  alienation.  Both  in  legal  and  in  equitable 
estates,  a  prohibition  against  the  alienation  of  a  fee  in  realty  or  an 
absolute  interest  in  personalty  is  invalid  as  remisrnant  to  the  nature 
of  the  estate.  Winsor  v.  Mills,  157  Mass.  362  :  Lovett  v.  Gillender, 
3.~>  X.  Y.  617.  Similarly,  a  provision  attached  to  a  present  absolute 
gift  that  the  donee  shall  be  excluded  for  a  time  from  possession,  or 
that  the  income  acctmulate  for  a  time  is,  generally,  bad,  for  there 


BEAT,  PROPERTY.  339 

again,  it  is  attempted  to  qualify  an  absolute  gift  by  withholding 
one  of  its  inherent  incidents.  The  donee  at  his  majority,  or  his 
creditors,  may  get  possession  without  waiting  for  the  time  fixed  by 
the  donor.  Saunders  v.  Vautier,  4  Beav.  115;  Sanford  v.  Lack- 
land, 2  Dill.  (U.  S.)  6;  see  Oxley  v.  Lane,  35  X.  Y.  340;  contra 
is  Claflin  v.  Claflin,  149  Mass.  19.  "  The  principle  is  simply  this : 
That  where  property  is  given,  granted,  or  bequeathed  to  certain 
individuals  to  be  used,  appropriated  and  applied  for  their  benefit, 
and  in  such  manner  that  no  other  person  or  persons  have  any  in- 
terest in  it,  they  thereby  become  in  effect  the  absolute  owners  of  it. 
and  may  exercise  all  the  rights  belonging  to  them  in  that  relation." 
Merrick,  J.,  in  Smith  v.  Harrington,  4  Allen  (Mass.),  56G.  In  the 
case  supposed,  B.'s  fund  is,  accordingly,  subject  to  the  claims  of  the 
creditors. 

Restraints  on  alienation  are,  however,  good  when  the  gift  is  to  a 
married  woman.  "  The  object  of  the  doctrine  was  to  give  a 
married  woman  the  enjoyment  of  property  independent  of  her  hus- 
band; but  to  secure  that  object,  it  was  absolutely  necessary  to  re- 
strain her  during  coverture  from  alienation.  The  reasoning  evi- 
dently applies  to  a  fee  as  much  as  to  a  life  estate,  to  real  .property 
as  much  as  to  personal."  Lord  Lyndhurst  in  Baggett  v.  Meux,  1 
Phil.  627.  But  the  reason  of  this  rule  and,  therefore,  the  rule 
itself  cease  to  apply  when  the  married  woman  becomes  a  widow. 
Accordingly  the  restraint  is  then  no  longer  valid.  Barton  v.  Bris- 
coe,  Jac.  603;  see  Robinson  v.  Randolph,  21  Fla.  629.  In  the  case 
supposed,  therefore,  C.'s  conveyance  passes  her  interest  to  the  trus- 
tee in  bankruptcy. 

In  general,  restraints  on  the  alienation  of  an  interest  for  life  are  also 
bad.  The  courts  'are  less  inclined  to  support  such  an  absolute  stifling 
of  the  alienation  of  property  than  they  are  to  support  a  forfeiture  or 
gift  over  on  alienation.  Thus,  if  land  is  given  to  A.  for  life  without 
power  to  anticipate  or  sell,  the  restraint  is  invalid  and  the  property 
may  be  voluntarily  or  involuntarily  conveyed  by  A.  The  doctrine  ap- 
plies alike  to  realty  and  to  personalty.  McCleary  v.  Ellis.  54  Iowa,  311 ; 
Bridge  v.  Ward,  35  Wis.  087;  Brandon  v.  Robinson,  18  Yes.  Jr.  420. 
So  in  case  of  a  trust  to  pay  income  to  A.  for  life  A.'s  creditors  can 
reach  his  interest,  even  though  the  time  and  amount  of  payments  be 
in  the  trustee's  discretion  (Green  v.  Spicer.  1  Rues.  &  M.  3r»5).  though 
not  if  the  trustee  have  and  exercise  a  discretion  to  exclude  A.  from 
participation.  Lord  v.  Bunn,  2  T.  &  C.  C.  99»  As  regards  legal  inter- 
ests for  life  or  years  the  invalidity  of  such  restraints  admits  of  prac- 
tically no  exception.  Halm  v.  Hutchinson,  159  Pa.  St.  133:  Wellington 
T.  Janvrin.  60  N.  H.  174.  As  regards  equitable  interests  the  rule  holds 
good  in  England  (Brandon  v.  Robinson,  18  Ves.  Jr.  429;  Graves  v.  Dol- 


340  -QUESTIONS  AND  ANSWERS. 

phin,  1  Sim.  66),  but  in  the  United  States  it  is  subject  to  the  exception 
of  spendthrift  trusts.     See  infra. 

4.  A.  bequeathed  a  fund  to  trustees  to  pay  the  income  to  B.  for 
life,  to  be  free  from'the  claims  of  B.'s  creditors.  B.  became  bank- 
rupt. May  the  creditors  reach  the  fund? 

Xo,  according  to  the  weight  of  authority.  It  will  be  observed 
that  the  case  is  not  one  of  a  limitation  over  on  bankruptcy;  on  the 
contrary  the  beneficial  interest  in  the  fund  is  to  remain  in  B.  in 
spite  of  his  bankruptcy.  Under  the  ordinary  rule,  the  restraint  • 
would,  accordingly,  be  bad.  See  p.  339,  supra.  The  case  presents, 
however,  one  of  the  so-called  spendthrift  trusts,  which  are  in  most 
of  the  United  States  (not  in  England), -held  to  be  valid  and  free 
from  the  claims  of  creditors.  This  doctrine  allows  an  equitable 
life  estate  in  realty  or  personalty  to  be  given  in  such  a  way  that, 
while  the  donee  has  the  full  beneficial  interest  in  it,  it  is  not  subject 
to  the  claims  of  the  donee's  creditors.  Overman's  Appeal,  88  Pa. 
St.  276;  Broadway  Bank  v.  Adams,  133  Mass.  170;  Smith  v. 
Towers,  69  Md.  77;  contra,  Tillinghast  v.  Bradford,  5  E.  I.  205; 
Jones  v.  Reese,  65  Ala.  134.  "  The  decisions  and  dicta  in  ten 
states*  are  against  the  validity  (of  spendthrift  trusts),  and  in  twelve 
states!  are  for  it;  while  in  two  statesj  they  are  conflicting."  Gray, 
Restraints  .on  Alienation  (2d  ed.),  §  177A.  The  United  States 
Supreme  Court,  by  an  elaborate  dictum  in  the  case  of  Nichols  v. 
Eaton,  91  U.  S.  716,  supported  the  doctrine.  For  an  exhaustive 
discussion  of  the  theory  and  authority  relating  to  spendthrift  trusts 
see  Gray,  id.,  §  175  et  seq. 

*  Rhode  Island.  New  York,  North  Carolina,  South  Carolina,  Georgia,  Alabama, 
Ohio  Kentucky.  New  Jersey,  and  Arkansas. 

t  Pennsylvania,  Massachusetts,  Illinois.  Maine,  Maryland,  Mississippi,  Ves- 
mont.  Missouri,  Tennessee,  Delaware,  Indiana,  and  Virginia. 

t  Wisconsin  and  Connecticut. 


REAL  PROPERTY.  341 

VIII.    RULE  AGAINST  PERPETUITIES. 
1.  IVhat  is  the  Rule  against  Perpetuities,  its  Object  and  History? 

As  the  development  of  conveyancing,  especially  by  the  machinery 
of  uses,  executory  devises,  and  trustees  to  preserve  contingent  re- 
mainders, rendered  possible  limitations  which  might  fetter  property 
for  excessively  long  periods,  or  indeed  forever,  public  policy  made 
it  advisable  to  fix  a  limit  of  remoteness  beyond  which  a  deed  or 
devise  could  not  be  operative.  This  is  provided  by  the  so-called 
Rule  against  Perpetuities,  which  arose,  by  judicial  legislation,  dur- 
ing the  seventeenth  century.  The  question  raised  by  the  rule  is 
always  whether  the  vesting  of  a  eiven  interest  is,  or  by  any  pos- 
sibility may  be,  too  remote  from  the  instrument  creating  it.  ""  The 
rule  requires  every  future  estate  limited  to  arise  by  way  of  shift- 
ing use  or  executory  devise  to-  be  such  as  must  necessarily  arise 
within  the  compass  of  existing  lives  and  twenty-one  years  there- 
after, with  the  possible  addition  of  the  period  of  gestation,  in  the 
case  of  some  person  entitled  being  a  posthumous  child."  Williams, 
Real  Property  (17th  Am.  ed.),  p.  465.  "  The  terms  of  the  rule  do 
not  import  that  the  limitation  must  necessarily  vest  within  the 
specified  time,  but  only  that  it  must  necessarily  vest  within  that 
time,  if  it  vests  at  all."  .  Challis,  Real  Property,  *146. 

To  determine  the  validity  of  such  limitation  the  time  when  the 
interest  will  vest  is  considered  from  the  standpoint  of  the  instru- 
ment creating  it.  If,  in  any  contingency,  the  time  of  vesting  may 
be  more  remote  from  that  instrument  than  the  rule  allows,  the 
gift  is  void,  "even  if,  in  its  actual  event,  it  should  fall  greatly 
within  that  limit."  Williams,  Real  Property  (17th  Am.  ed.),  466. 
In  the  earlier  form  of  the  rule,  a  single  life  was  the  limit  of  re- 
moteness allowed,  then  the  twenty-one-year  period  was  added, 
(Stephens  v.  Stephens,  Gas.  temp.  Talbot.  228;  2  Barnard  K.  B. 
375),  whether  or  not  there  was  an  actual  infancy  (Cadell  v.  Palmer, 
1  Cl.  &  F.  372),  and  finally  the  period  of  gestation,  when  a  child  en 
rentre  sa  mere  is  a  party  in  interest.  Long  v.  Blackall,  7  T.  R. 
100. 

The  rule  is  often  said  to  be  a  means  of  preventing  restraints  on 
alienation.  See,  for  instance,  Christ's  Hospital  v.  Grainger.  1 
Macn.  &  G.  460,  at  p.  464..  It  seerns,  however,  to  be  directed  really 
against  remoteness  of  limitation.  "An  executory  limitation  to 
take  effect  on  the  happening  of  an  eve  which  may  not  take  place 
within  a  life  in  being  and  twenty-one  vears.  is  not  made  valid  hv 
the  fact  that  a  person  in  whose  favor  it  is  made  can  release  it." 
Cotton,  L.  J.,  In  re  Hargreaves,  43  Ch.  Div.  401. 

The  rule  applies  to  personal  as  well  as  to  real  property,  to  legal 
as  well  as  to  equable  estates,  and  probably  to  contingent  re- 
mainders as  well  as  to  limitations  by  shifting  use  and  executory 
devise.  On  the  last  point  see  Gray.  Rule  against  Perpetuities 
(2d  ed.).  §  284  et  sec/.;  but  cf.  Cole  v.  Sewell.  2  H.  L.  C.  186. -at 
pr>.  230,  231:  and  see  1  Perry,  Trusts  (nth  ecU,  §  385.  as  to  con- 
tingent remainders  in  equity.  The  English  courts  hold  that  the 


34i  QUESTIONS  AND  ANSWERS. 

right  to  re-enter  where  the  condition  of  a  grant  is  broken  is  within 
the  rule.  Thus  where  trustees  held  property  for  a  hospital  subject 
to  a  proviso  that  if  the  property  were  converted  to  any  other  use, 
it  should  revert  to  the  grantor's  heirs,  it  was  held  that  the  proviso 
violated  the  Rule  against  Perpetuities,  and  was  void.  In  re  Hollis's 
Hospital,  1899,  2  Ch.  540.  The  law  in  America  appears  to  be  con- 
trary. Tobey  v.  Moore,  130  Mass.  448;  see  First  Universalist 
Society  v.  Boland,  155  Mass.  171;  Cowell  v.  Springs  Co.,  100  V.  S. 
55 ;  but  see  1  Am.  L.  Eev.  265. 

Where  a  limitation  is  void  for  remoteness,  all  estates  limited  to 
follow  it  are  also  void.  1  Jarm.  Wills  (5th  Am.  ed.),  522. 

2.  A.  devised  land  to  Ms  son  X.  for  life  with  remainder  to  X.'s 
children  for  life  in  equal  shares  to  he  held  in  severally  with  cross- 
remainders,  and  with  remainder  in  fee  to  the  person  whom  the 
survivor  of  X.'s  children  should  %  will  appoint.  Are  the  limita- 
tions good? 

The  life  estate  to  X.  and  the  remainders  to  his  children  are 
clearly  good,  since  all  vest  at.  the  time  of  X.'s  death,  and,  therefore, 
at  the  expiration  of  one  life.  The  cross-remainders  vest  at  the 
same  time  (Gray,  Rule  against  Perpetuities  (2d  ed.),  §207),  and 
are  consequently  good  also. 

The  power  of  appointment  is,  however,  too  remote.  In  con- 
sidering the  validity  of  powers,  two  tests  must  be  applied.  (1) 
The  donee  of  the  power  must  be  ascertainable,  and  the  time  when 
the  power  is  to  be  exercised  must  fall  within  the  limit  of  the  rule. 
In  re  Hargreaves,  43  Ch.  Div.  401.  (2)  The  persons  in  whose 
favor  the  power  actually  is  exercised  must  be  within  the  limit  of  tbe 
rule.  Blight  v.  Hartnoll,  19  Ch.  Div.  294.  In  the  case,  supposed 
the  first  test  shows  the  power  to  be  invalid,  for  the  donee  of  it 
might  be  a  child  born  after  A.'s  death,  and  as  he  is  to  exercise  the 
power  by  will,  it  may  be  carried  far  beyond  the  limit  of  tbe  rule. 
Thus  it  is  not  enough  that  the  donee  of  the  power  be  born,  or  even 
that  he  take  the  power  within  the  limit  of  the  rule.  Tbe  power 
must  be  such  that  if  exercised  at  all.  it  must  be  exercised  within 
.the  period  of  the  rule,  otherwise  it  is  bad  from  the  beginning. 

The  fact  that  the  terms  of  a  power  are  so  broad  as  to  admit  of 
its  exercise  in  favo*  of  objects  too  remote  does  not  invalidate  the 
power;  but  if  it  be  actually  so  exercised  the  appointment  is  in- 
valid. 

In  the  ease  supposed  above  only  a  single  Hfe,  that  of  X.,  Is  used  RS 
the  "  measuring  rod."  .  Any  reasonable  number  of  lives  in  being  may, 
however,  be  used  equally  well,  provided  the  limitations  must  vest  within 
twenty-one  years  of  the  dropping  of  the  longest  oFthe  lives.  See  Thel- 
lusson  v.  Woodford,  4  Yes.  Jr.  227,  at  pp.  313.  320.  Thus  a  gift  to  trus- 
tees for  the  use  of  the  youngest  child  of  any  one  of  the  eight  living 
brothers  of  the  donor,  upon  his  reaehinir  twenty-one,  is  valid.  Statutes 
have,  however,  in  many  states  limited  the  number  of  lives  which  may 
be  used  as  the  measure  —  usually  to  two.  New  York  Real  Property 


EEAL  PROPERTY.  343 

Law,  §  32;  1  Wis.  Ann.  Stat.  (S.  &  B.'s  ed.),  §  2039.  These  statutes 
generally  make  the  existence  of  restraints  on  alienation  beyond  the 
period  of  the  rule  the  test  of  validity  rather  than  the  degree  of  remote- 
ness, and  impose  various  other  limitations  on  the  creation  of  future  es- 
tates. Stimsou,  Am.  Stat.  Law,  Art.  144. 

3.  A.  devised  land  to  A*,  for  life  with  power  to  appoint  the  fee 
to  any  person  by  deed  or  will.*  X.,  by  deed,  exercised  the  power  in 
favor  of  his  daughter,  Y.,  who  was  born  after  A.'s  death,  adding 
that  the  gift  was  to  take  effect  upon  her  marriage.     Was  there  a 
valid  exercise  of  the  power? 

A  power  of  appointment  derives  its  efficacy  from  the  instrument 
creating  the  power  and  accordingly,  to  test  its  remoteness,  the  exer- 
cise of  the  power  must  be  read  as  part  of  the  original  creating  in- 
strument. In  the  present  case,  if  A.'s  original  devise  had  been  to 
Y.  upon  the  death  of  X.,  it  would  have  been  valid,  but  if  to  Y. 
upon  her  marriage,  it  would  clearly  have  been  too  remote,  because 
the  marriage  might  not  take  place  until  more  than  twenty-one 
years  after  X.'s  death,  which  would  carry  it  beyond  the  period  of 
the  rule.  Accordingly,  the  appointment  to  Y.  upon  her  marriage 
would  ordinarily  be  too  'remote.  The  present  case  is,  however, 
peculiar  in  that  X.  has  an  unlimited  power  of  appointment  by  deed 
or  will.  The  donee  of  such  a  power  is  held  to  be  practically  the 
owner  of  the  fee,  since  he  has  absolute  control  of  it,  and  he  is. 
therefore,  allowed  to  make  any  gift  which  the  absolute  owner  of 
the  fee  might  make,  even  though  such  gift  be  too  remote  from  the 
instrument  creating  the  power.  Sugden,  Powers  (8th  ed.),  p. 
394;  Gray,  Rule  against  Perpetuities  (2d  ed.),  §  477. 

In  this  connection  should  be  noted  also  a  class  of  decisions  hold- 
ing that  where  an  absolute  gift  is  made,  followed  by  a  provision 
that  the  vesting  be  postponed  to  a  period  more  remote  than  allowed 
under  the  rule,  the  qualifying  provision  will  be  rejected  and  the" 
gift  be  treated  as  absolute.  "The  author  of  the  limitations  in- 
tends the  prior  absolute  gift  to  prevail,  except  so  far  only  as  it  is 
effectually  superseded  bv  the  subsequent  qualifying  one."  Lewis, 
Perpetuities,  535.  Under  this  doctrine  also,  it  would  seem  that 
the  gift  to  Y.  might  be  upheld.  Ring  v.  Hardwick,  2  Beav.  352. 

4.  A  testator  bequeathed  $20,000  fo  trustees  to  invest  and  apply 
the  income  to  the  purchase  of  books  for  a  public  library  in  a  certain 
town  when  and  so  soon  as  such  librari/  should  be  established,  and 
if  such  librari/  should  not  be  established  or  should  thereafter  cease' 
to   exist,  then  to  apvlii  the  income   to   the  support  of  a  certain 
orphan  asylum.     Are  the  gifts  valid  under  the  rule? 

Yes.  It  is  clear  that  the  establishment  of  the  library  might  bo 
at  a  period  much  more  remote  than  that  limited  by  the  Rule  against 
Perpetuities:  and  that  the  contingency  on  which  the  gift  to  the 
orphan  asylum  depended  might  be  even  more  remote.  But  both  are 


344  QUESTIONS  AND  ANSWERS. 

charitable  objects,  and  the  gifts  will  be  upheld  though  in  ordinary 
cases  they  would  be  held  to  violate  the  rule.  In  the  case  of  the  first 
gift,  the  trustees  will  holJ  jr  a  reasonable  time  to  await  the  es- 
tablishment of  a  library.  Sinnett  v.  Herbert,  L.  E.,  7  Ch.  App. 
232 ;  Chamberlayne  v.  B'  ockett,  L.  R.,  8  Ch.  App.  200.  When  the 
contingency  on  which  the  second  gift  depends  happens,  the  use  will 
shift  and  the  asylum  take.  Christ's  Hospital  v.  Grainger,  1  Macn. 
&  G.  460;  Storrs  Agric.  School  v.  T  hitney,  54  Conn.  342. 

Some  authorities  take  the  position'  simply  that  the  rule  does  not 
apply  to  gifts  for  charitv.  Yeap  Cheak  Xeo  v.  Ong  Cheng  Xeo, 
L.  R.,  6  P.'C.  381,  at  p.'  394;  see  Hopkins  v.  Grimshaw,  165  U.  S. 
342,  at  p.  355.  Others  bring  the  cases  within  the  doctrine  of 
cy-pres*  and  avoid  raising  the  questions  under  the  rule.  "  If  the 
court,  however,  can  see  an  intention  to  make  an  unconditional  gift 
to  charity  (and  the  court  is  very  keen-sighted  to  discover  this  in- 
tention), then  the  gift  will  be  regarded  as  immediate,  not  subject  to 
any  condition  precedent,  and,  therefore,  not  within  the  scope  of  the 
Rule  against  Perpetuities.  The  mode  pointed  out  by  the  testator  is 
only  one  way,  though  the  preferable  way,  of  carrying  out  the 
charitable  purpose;  and  if  it  cannot,  with  regard  to  the  general 
charitable  intention,  be  carried  out  in  that  way,  it  will  be  carried 
out  cy-pres."  Gray,  Rule  against  Perpetuities  (2d  ed.),  §  607 ;  see 
Allen  v.  Stevens,  161  X.  Y.  122.  Whatever  view  be  adopted,  such 
cases  'as  that  supposed  above,  where  charity  is  throughout  the  ob- 
ject, are  not  treated  as  subject  to  the  rule.  It  should  be  noted  in 
this  connection  that,  where  the  gift  is  to  a  noncharitable  object 
with  a  gift  over  to  a  charity  on  a  too  remote  contingency,  or  rice 
versa,  the  ordinary  Rule  against  Perpetuities  is  applied  and  the 
gift  over  held  void.  Commissioners  of  Charitable  Donations  v. 
DeClifford,  1  Dr.  &  W.  245;  Brattle  Square  Church  v.  Grant,  3 
Gray  (Mass.),  142;  see  Hopkins  v.  Grimshaw,  165  U.  S.  342,  at 
p.  355. 

In  addition  to  cases  of  gifts  to  charity  .a  further  exception  to  the 
rule  should  be  noted,  nainejy,  that  of  limitations  in  fee  tail.  Obviously, 
these  violate  the  rule,  since  the  estate  is  to  vest,  not  by  descent,  but 
by  virtue  of  the  creating  instrument,  in  successive  generations  indef- 
initely.' Such  an  estate  was,  however,  readily  destructible  at  common 
law  at  the  will  of  the  tenant  through  the  machinery  of  a'  common  recov- 
ery. Therefore,  limitations  in  fee  tail  made  by  the  grantor  are  opera- 
tive only  until  a  tenant  chooses  to  destroy  them,  and  this  fact  is  held 
to  remove  the  reason  for  objecting  to  their  remoteness. 
.  Similarly,  the  validity '  of  limitations  to  follow  immcdiatcl)/  on  an 
estate  tail  is  upheld  since  a  recovery  which  bars  the  entail  will  also 
extinguish  those  interests.  Challis.  Real  Property,  p.  *146;  Goodwin 
v.  Clark,  1  Lev.  35 :  Heasman  v.  Pearse.  L.  R..  7  .Ch.  275.  But  if  an 
interval  exists  between  the  determination  of  the  estate  tail  and  the 
subsequent  limitation  the  l:itt<>r  i*  had,  since,  during  such  interval  it 
would  be  indestructible.  (Jr;:y.  Rule  against  Perpetuities  (2d  ed.), 
§  446. 

'  The  rule  of  rii-pi-cx  is  a  rule  for  the  construrtir>->  of  instrument*  in  equity, 
by  which  the  intention  of  the  party  is  carried  out  r.«  nrar  as  mail  he.  when  it 
would  be  impossible  or  illegal  to  give  it  literal  effect."  Bouv.  Law  Diet. 


REAL  PROPERTY.  .  345 

5.  A  testator  left  money  to  trustees  to  pay  $1,000  annually  to 
each  of  the  children  of  A.,  whenever  born,  from  and  after  the  time 
of  their  marriage.  At  the  time  of  the  testator's  death,  A.  was  liv- 
ing and  had  then  two  children,  one  of  whom  was  married.  Is  the 
gift  valid? 

This  is  not  a  case  of  an  immediate  gift  with  enjoyment  post- 
poned, for  the  children's  interest  is  not  to  rest  until  marriage. 
The  gift,  furthermore,  is  to  a  class, —  the  children  of  A.  In  such 
cases  ordinarily  the  gift  is  bad  if  too  remote  as  to  any  member  of 
the  class.  Pearks  v.  Moseley,  L.  R.,  5  App.  Gas.  714.  "  It  is  the 
period  of  vesting  and  not  the  description  of  the  legatees,  that  pro- 
duces the  incapacity.  *  *  The  bequests  in  question  are  not 
made  to  individuals  but  to  classes;  and  what  I  have  to  determine 
is  whether  the  class  can  take."  Grant,  M.  R.,  in  Leake  v.  Robin- 
son, 2  Mer.  363,  at  pp.  388,  390.  Accordingly,  a  gift  such  as  that 
supposed  would  ordinarily  be  void.  An  exception  is,  however,  made 
in -cases  where  a  definite  share  is  set  off  to  each  member  of  the 
class.  There  the  gift  will  be  held  divisible,  and  such  members  of 
the  class  as  come  within  the  limit  of  remoteness  may  take.  See 
Storrs  v.  Benbow,  3  DeG.  M.  &  G..  390,  at  p.  397;  Boughton  v. 
Boughton,  1  H.  L.  C.  406,  at  p.  414.  So  in  the  case  supposed  the 
married  child  of  A.  takes  at  once  and  the  other  will  take  upon 
marriage. 

Clearly,  as  applied  to  children  of  A.,  born  after  the  testator's 
death,  the  time  of  vesting  might  be  too  remote.  Siich  children 
therefore  would  not  take. 

Where  an  immediate  gift  to  a  class  is  made  it  is  held  that  the  class 
is  closed  upon  the  execution  of  the  deed,  or,  if  the  gift  is  by  will,  upon 
the  death  of  the  testator,  for  the  gift  is  to  vest  at  that  time.  Thus  a 
devise  to  the  children  of  A.,  who  attain  twenty-five  years  of  age,  is  con- 
fined to  such  children  of  A.  as  are  born  at  the  time  the  will  takes  effect. 
"A  gift  to  a  class  not  preceded  by  any  life  estate  is  a  gift  to  such  of 
the  class  as  are  living  at  the  death  of  the  testator."  Malins,  V.  C.,'  in 
Picken  v.  Matthews,  L.  R.,  10  Ch.  Div.  204.  at  p.  267.  By  thus  shut- 
ting out  afterborn  children  the  gift  is  saved  from  the  vice  of  remoteness. 

Where,  however,  the  gift  to  the  class  is  preceded  by  a  particular  es- 
tate, such  as  to  defer  its  vesting  until  the  expiration  of  the  particular 
estate,  the  class  is  not  considered  closed  until  the  particular  estate 
has  terminated.  "  Where  the  legacy  is  given  *  *  *  with  any  sus- 
pension of  the  time  so  as  to  make  the  gift  take  place  *  *  *  at  a 
future  period,  then  such  children  shall  take  as  are  living  at  that  period." 
Lord  Thurlow  in  Singleton  v.  Gilbert,  1  Cox  Ch.  Cas.  68,  at  p.  71.  This 
may.  of  course,  render  the  gift  too  remote. 

Where  each  member  of  a  class  is  to  take  on  a  certain  contingency  - 
attaining  a  specified  age,  etc.— the  class  closes  when  the  contingency 
first  happens  to.  one  of  its  members.  Andrews  v.  Partington.  3  Bro. 
Ch.  401  :  see  Iloste  v.  Pratt.  3  Ves.  Jr.  730.  Thes?  so-ni-wlnt  arbi- 
trary rules  are  rules  of  convenience  designed  to  fix  an  early  aivl  def- 
inite time  when  the  class  can  be  closed  and  the  number  of  shares  be 
known. 


-  CONTRACTS. 


I.   NATURE  OF  THE  OBLIGATION. 

1.  What  are  the  sources  of  quasi-contrads,  and  how  is  the 
designation  appropriate  ? 

Quasi-contracts  may  be  said,  in  general,  to  rest: 

1.  Upon  a  record  of  court. 

2.  Upon  a  statutory,  official  or  customary  duty. 

3.  Upon  the  doctrin^    that  no  one  shall  be  allowed  to  enrich 
himself  unjustly  at  the  expense  of  another. 

It  has  long  been  settled,  that  a  man  might  bring  an  action  in 
contract,  to  recover  the  amount  of  a  money  judgment;  O'Brien  v. 
Young,  95  N.  Y.  428,  432;  or  that  where  a  statute  directed  the 
payment  of  certain  money  for  the  support  of  paupers,  an  action 
in  contract  would  lie  for  the  money.  Millford  v.  Commonwealth, 
144  Mass.  (M.  An  innkeeper  or  common  carrier  can  also  be 
forced  by  suit  to  perform  his  customary  duty  towards  an  individual, 
.and  an  insane  person  can  be  sued  in  contract  for  necessaries  fur- 
nished him. 

From  these  illustrations,  the  appropriateness  of  the  designation 
is  most  apparent.  In  all  of  these  cases  there  is  a  duty  placed  upon 
a  man  to  do  something,  but  in  no  one  of  them  is  there  a  contract 
based  upon  the  agreement  of  the  parties.  The  duty  is  only 
^«d^'-contractual.  It  exists  solely  by  operation  of  law  and  is 
always  independent  of  any  real  agreement,  and  often  counter 
to  expressed  intentions.  The  obligation  is  one  of  an  equitable 
character  only.  Keener  on  Quasi-Contracts,  16-20.  The 
greater  majority  of  cases  in  which  recovery  is  allowed,  in  quasi- 
contract,  are  based  upon  the  principle  of  unjust  enrichment. 
The  courts  are  loath  to  allow  a  defendant  to  keep  property  which 
he  ought  not  to  have,  and  to  which  the  plaintiff  is  really  entitled. 
They  will  not  interfere,  however,  when  that  is  not  the  real  state 
of  facts.  If  the  defendant  no  longer  has  the  property,  and  has 
changed  his  position  so  that  he  would  be  a  loser,  if  forced  to  pay 
the  plaintiff,  a  case  of  unjust  enrichment  is  not  presented.  4  Harv. 
L.  Iiev.  310,  and  note  1,  cases  collected;  Curnen  v.  Mayor,  79  N.  Y. 

511. 

346 


QlJASI-CONTRACTS.  347 

II.    FAILURE  OF  CONSIDERATION. 

a.  Mistake. 
1.    MISTAKE  OF  LAW  OR  FACT. 

2.  A.  pays  B.  $1,000,  being  mistaken  as  to  the  material  facts 
on  which  the  debt  was  supposed  to  arise.     Can  he  recover  the 
amount  so  paid  ? 

Yes.  It  has  always  been  held  that  a  man  should  not  be  allowed 
to  keep  money  for  his  own  unjust  enrichment,  which  has  been 
pfrid  him  through  a  mistake  of  the  facts.  Keener  on  Quasi-Con- 
tracts,  p.  26  et  seq. 

3.  A  statute  fixed  the  value  of  sterling  money  in  the  currency 
of  the  State.     Through  a  mistake,  as  to  this  law,  A.  paid  B. 
more  money  than  was  due  him.     Could  he  recover  it? 

No.  It  is  fixed  law  in  England,  and  in  most  of  the  States  of  this 
country,  that  money  paid  under  mistake  of  latv  cannot  be  recov- 
ered. Bilbie  v.  Lumley,  2  East,  469;  Clarke  v.  Butcher,  9  Cow. 
(N.  Y.)  674.  The  law  in  Connecticut  is  contra.  Northrop  v. 
Graves,  19  Conn.  548.  Georgia,  Kentucky  and  South  Carolina  are 
doubtful.  Keener  on  Quasi-Contracts,  p.  85. 

Previous  to  the  decision  of  Bilbie  v.  Lumley  (supra),  the  law  was  to 
the  effect  that  a  recover}'  was  allowed  whether  the  mistake  was  of 
law  or  fact.  The  courts  saw  no  reason  for  a  distinction,  and  no 
sound  reason  ever  has  been  advanced.  The  reason  usually  given  la 
that  a  man  is  presumed  to  know  the  law.  In  the  case  of  a  crime  or 
a,  tort,  the  ignorance  of  the  law  cannot,  of  course,  be  advanced  by  the 
guilty  party,  to  excuse  him  for  the  wrong  done.  Public  policy  demands 
that  statutes  shall  be  enforced.  But  there  is  certainly  no  public  policy 
which  demands  that  a  man,  who  has  become  possessed  of  another's 
property,  shall  be  allowed  to  keep  it.  A  fiction  is  sometimes  resorted  to 
by  courts  for  the  sake  of  working  justice,  but  here  so  preposterous 
a  fiction  as  a  presumption  that  a  man  knows  all  the  law  is  set  up  to 
Tvork  injustice.  This  rule  is  attacked  on  all  sides,  but  unfortunately 
the  objections  were  only  urged  after  the  law  had  become  fixed. 

The  weakness  of  the  present  state  of  the  law  is  the  more  manifest, 
when  it  is  remembered  that  recovery  for  mistake,  though  allowed  in 
•courts  of  law,  is  really  an  equitable  action,  and  yet  a  court  of  equity 
lias  never  held  that  there  was  a  distinction  between  a  mistake  of  law 
and  a  mistake  of  fact,  though  there  are' some  dicta  that  equity  will 
allow  recovery.  Sea  Danlell  v.  Sinclair,  6  App.  Gas.  18*;  Canedy  v. 
Marcy,  13  Gray,  373,  377;  Kennarri  v.  George,  44  N.  H.  440,  446. 

4..  A  promised  to  give  B.  a  note  bearing  interest.  By  a  mis- 
take, the  interest  clause  was  omitted,  lut  A.,  in  ignorance  of  that 


348  QUESTIONS  AND  ANSWERS. 

fact,  paid  the  interest  for  a  year,  and  now  sues  to  recover  the 
amount  so  paid.     Should  he  succeed? 

No.  Whether  the  mistake  be  one  of  law  or  fact,  recovery  is 
only  allowed  in  a  case  where  the  defendant  has  been,  unjustly 
enriched.  When  he  is  entitled  to  the  payment  in  good  conscience, 
a  court  will  not  deprive  him  of  it,  even  though  they  could  not  have 
put  him  in  possession  of  it  originally.  Buel  v.  Boughton,  2  Den.  91. 

On  the  same  principle,  money  paid  in  ignorance  of  the  fact  that 
the  Statute  of  Limitations  has  run  cannot  be  recovered.  Hubbard 
v.  Hickman,  4  Bush  (Ky.),  204. 

5.  A.  pays  B.,  an  agent,  $100,  by  mistake,  for  which  neither 
party  is  responsible.     B.  pays  to  his  principal,  who  is  now 
insolvent,  so  that  B.  must  bear  the  entire  loss  personally  if  A.  re- 
covers the  money.      Should  a  recovery  be  allowed? 

The  law  is  that  a  recovery  is  possible.  Corn  Exchange  Bk.  v. 
Nassau  Bk.,  91  N.  Y.  74.  On  principle,  however,  the  result  should 
be  otherwise.  The  defendant  has  so  changed  his  position,  that 
the  unjust  enrichment  no  longer  exists.  Blake  v.  Metzgar,  150 
Penn.  St.  291;  Keener  on  Quasi-OWtracts,  p.  GT. 

Where,  however,  in  such  a  case,  the  mistake  was  due  to  the 
plaintiff's  negligence,  his  recovery  should  be  barred.  Walker  v. 
Conant,  65  Mich.  194.  But  if  the  defendant  has  not  changed  his 
positicfn,  the  negligence  is  generally  held  to  be  no  bar  to  the 
plaintiff's  recovery.  Devine  v.  Edwards,  101  111.  138;  Brown  v. 
Road  Co.,  56  Ind.  110-115. 

6.  A.  agrees  to  pay  B.  $1,000  per  year  for  the  use  of  a  pat- 
entcd  process.     After  two  years,  A.  learns  that  the  patent  was 
not  good  and  sues  for  the  money  paid.     Should  he  recover? 

No.  The  law  is  settled,  both  in  England  and  the  United  States, 
that  a  recover}7  under  such  circumstances  will  not  be  allowed.  The 
plaintiff  has -had  the  enjoyment  of  what  he  stipulated  for,  and 
would  never  have  assumed  those  privileges,  except  upon  the  con- 
tract. Taylor  v.  Hare,  1  B.  &  P.  N.  R.  260.  This  case  has  been 
almost  universally  followed.  But  see  Keener  on  Quasi-Contracts, 
p.  37. 

6,  a.  A.,  irho  is  in  partnership  with  B.,  acting  without  avilior- 
ity,  but  for  a  firm  purpose,  makes  a  sealed  contract  with  X.  for 
the  construction  of  a  dam.  A.  and  B.  dissolve  partnership,  and 
X.  sues  A.  and  B.  as  partners.  Can  he  recover  against  both? 

Yes.  While  B.  is  not  liable  upon  the  contract,  still  X.  has  an 
equitable  claim  for  his  work,  labor  and  materials,  and  so  far  as 
these  benefited  the  firm  before  dissolution,  B.  is  liable.  Van 
Deusen  v.  Blum,  IS  Pick.  (Mass  )  229. 


QUASI-COXTRACTS.  349 

2.     MISTAKE  AS  TO  VALIDITY. 

7.  A.  is  a  bona  fide  holder  of  a  bill  of  exchange,  drawn  upon 
B.,  in  which  the  drawer  s  name  is  forged.     B.  pays  the  bill   be- 
fore he  learns  of  the  forgery,  and  then  seeks  to  recover  the  money. 
Should  he  succeed? 

No.  It  is  a  question  of  who  shall  suffer  the  loss,  and  the  courts 
will  not  transfer  it  from  one  party  to  the  other,  when  both  are 
equally  innocent.  A.  has  in  no  way  acted  against  conscience,  and 
having  the  legal  title  to  the  money,  may  keep  it.  Price  v.  Xeal, 

3  Burr.  1354;  Leather  v.  Simpson,  L.  B.  11  Eq.  398.     See  also  * 
Harv.  L.  Rev.  297-310. 

The  reason  often  given  for  refusing  to  allow  B.  to  recover  is  that  he 
should  know  the  signature  of  his  drawer,  and  was  negligent  in  not 
discovering  the  forgery.  The  insufficiency  of  this  explanation  is  mani- 
fest, however,  from  the  fact  that  the  result*could  not  be  changed  by 
showing  that  the  forgery  was  such  that  no  one  could  detect  it  The. 
better  reason  is  that  where  both  parties  are  innocent,  the  law  will  not 
Interfere  and  the  loss  will  be  allowed  to  remain  where  it  fell.  So,  also, 
lu  the  above  case,  if  B.  had  accepted  the  bill  but  refused  to  pay  it  on 
discovering  the.  forgery,  the  court  would  not  interfere  with  A.'s  legal 
rights,  and  he  could  force. B.  to  honor  his  acceptance.  Bass  v.  Clive, 

4  Maule  &  Selw.  13. 

Where,  also,  a  forged  bill  or  note  is  sold  before  maturity,  the  good 
faith  of  the  vendor  will  not  avail  him,  and  the  purchaser  can  recover 
tlamasres  from  him.  A  vendor  warrants  the  validity  of  his  papor.  Dela- 
ware Bank  v.  Jarvis,  20  N.  Y.  226;  Gurney  v.  Womersley,  4  E.  &  B. 
133. 

8.  A.  paid  a  bill  drawn  on  him  in  which  the  signatures  were 
all  good,  but  the  body  of  the  bill  had  been  changed  by  increasing 
the  amount.     Could  A.  recover  the  money  so  paid  to  a  bona  fide 
holder  of  the  bill? 

Yes.  There  should  be  no  distinction,  on  principle,  between  for- 
geries of  signatures  and  in  the  body  of  the  paper;  but  it  is  generally 
held  in  this  country,  that  a  forgery  in  the  body  will  allow  recovery. 
Bank  of  (Jommorce  v.  Union  Bank,  3  N.  Y.  230.  See  Bills  and 
Notes,  Ques.  19. 

9.  A.,  acting  in  good  faith,  buys  P  not?  which  was  properly 
made  by  B.,  but  the  indorsement  to  A.  is  a  forgery.     B.  pays  at 
maturity,  and  then,  learning  of  the  forgery,  sues  to  recover. 
Should  he  succeed? 

Yes.  No  matter  what  the  good  faith  of  A.,  he  must  shoir  a 
good  title  to  his  paper,  which  he  could  never  get  by  a  forged 
indorsement.  Canal  Bank  v.  Bank  of  Albany.  1  HilJ  (N.  Y.), 
287.  See  Bills  and  Notes,  Ques  19. 


QUESTIONS  AND  ANSWERS. 

3.     MISTAKE  AS  TO  TITLE. 

10.  A.,  acting  in  good  faith,  sells  B.  a  horse,  which  A.  has  in 
his  possession,  and  a  piece  of  land,  without  an  express  warranty 
of  title  in  either  case.     If  A.  has  no  title  to  either  the  horse  or 
the  land,  what  are  B.'s  rights? 

In  the  case  of  the  horse,  B.  could  recover  the  money  paid.  In 
England  the  recovery  is  based  on  failure  of  consideration.  Morley 
v.  Attenborough,  3  Ex.  500,  513-514;  Gurney  v.  Womersley,  4  E. 
&  B.  133.  In  the  United  States,  the  general  rule  is  that  possession 
of  personal  property  implies  title,  and  in  every  case  of  the  sale  of 
personal  property  in  possession  there  is  an  implied  warranty  of  title 
in  the  vendor.  Burt  v.  Dewey,  40  N.  Y.  283,  284;  Dorr  v.  Fisher, 
55  Mass.  271,  273.  There  is,  however,  no  implied  warranty  when 
the  goods  are  in  the  possession  of  a  third  party.  Benjamin  on 
Sales,  §§  607,  630,  64^ 

B.  could  not,  however,  recover  the  money  paid  for  the  land. 
Where  realty  is  purchased,  the  warranty  must  be  expressed,  if  there 
is  to  be  a  right  to  recover.  Of  course,  A.  could  not  keep  the  money 
if  he  knew  of  his  defect  of  title  at  the  time  of  the  sale.  CLare  v. 
Lamb,  L.  E.  10  C.  P.  334. 

The  difference  between  the  sales  of  personalty  and  realty,  in  that 
the  vendor  Is  held  to  warrant  one  and  not  the  other,  is  due  to  historical 
reasons.  Originally,  it  was  held  that  an  express  stipulation  was  neces- 
sary in  every  case,  or  otherwise  the  maxim  caveat  emptor  was  applied 
with  full  vigor.  Broom's  Maxims,  768.  In  the  case  of  realty  the  old 
rule  has  survived  and  a  man  must  still  have  a  warranty  deed,  or  he 
has  no  warranty  at  all. 

4.    MISTAKE   AS   TO    EXISTENCE    OF    SUBJECT-MATTER.  ' 

11.  A.  gives  B.  a  deed,  without  warranty,  to  certain  landr 
acting  bona  fide.     It  afterwards  appears  that  there  is  no  such- 
land  as  that  described.     Can  B.  recover  the  money  paid? 

Yes.  Though  there  was  no  warranty,  it  is  held  that  the  prop- 
erty must,  at  least,  be  in  existence  in  order  to  enable  a  vendor  to- 
keep  the  money.  Hitchcock  v.  Giddings.  4  Price,  135. 

Similarly,  if  A.  sells  B.  goods  under  a  mutual  mistake  as  to 
their  identity,  and  B.  finds,  for  instance,  that  he  has  secured  a 
domestic  bill  of  exchange,  instead  of  a  foreign  one,  for  which  he 
contracted,  he  can  recover  the  money  paid.  Gompertz  v.  Bartlett. 
2  F.  &  B.  849. 

b.     Failure  of  Defendant  to  Perform  Contract. 
1.    DEFENDANT  RELYING  UPON  STATUTE  OF  FRAUDS. 

12.  A.  made  an  oral  agreement  with  B.,  by  which  A.  was  to 
make  improvements  on  B.'s  land,  and  B.  was  to  give  A.  a  lease 


QUASI-CONTRACTS.  351 

•for  two  years.  After  the  improvements,  B.  refused  to  give  the 
lease,  saying  that  the  contract  could  ndt  be  enforced  under  the 
Statute  of  Frauds.  What  are  A.'s  rights,  if  any? 

A.  may  recover  the  amount  by  which  B.  has  actually  been  bene- 
fited by  the  improvements.  The  Statute  of  Frauds  is  a  complete 
bar  to  an  action  for  specific  performance,  or  any  other  action  based 
upon  the  contract,  as  such,  but  the  court  will  not  allow  the  defend- 
ant to  set  up  the  statute,  and  still  keep  the  benefits  conferred  by  the 
plaintiff  in  expectation  of  the  performance  of  the  contract.  Wil- 
liams v.  Bemis,  108  Mass.  91;  Gray  v.  Hill,  Ry.  &  M.  420. 

13.  A.  agreed  orally  to  convey  a  piece  of  land  to  B.,  if  the 
latter  would  make  him  a  monument.     When  the  monument  was 
completed,  A.  declined  to  take  it  and  refused  to  convey  the  land, 
and  B.  sued  for  the  work  done  on  the  monument.     Could  he 
recover? 

No.  Recovery  in  such  a  case  is  based  solelyupon  the  unjust  en- 
richment of  the  defendant,  and  here,  though  the  plaintiff  has  been 
at  an  expense,  the  defendant  has  not  been  enriched.  Dowling  v. 
McKenney,  124  Mass.  478. 

2.    PERFORMANCE  IMPOSSIBLE. 

14.  A.  paid  freight,  in  advance,  for  carrying  his  goods  to  a 
certain  port.     The  ship  was  lost  at  sea,  and  A.  sues  for  a  return- 
of  the  freight  paid.     Would  he  succeed? 

Yes.  The  fact  that  the  performance  of  the  contract  is  impos- 
sible does  not  give  the  defendant  the  right  to  retain  the  benefits 
received,  but  to  which  he  was  only  entitled  upon  the  safe  deliver}'  of 
the  goods.  Griggs  v.  Austin,  3  Pick.  20.  The  English  rule,  how- 
ever, is  contra.  Byrne  v.  Schiller,  L.  R.  6  Ex.  319. 

15.  A.  paid  $100  for  a  proposed  patent  which  B.  was  about  to 
take  out.     B.  died  before  the  patent  could  be  perfected.     Can  A. 
recover  the  money  paid? 

Yes.  The  estate  would  be  unjustly  enriched,  if  allowed  to  keep 
money  for  which  no  equivalent  had  been  rendered.  Knowles  v. 
Bovill,  22  Law  Times  Rep.  70, 

3.    bEFENDANT  RELYING  ON   ILLEGALITY    OF   CONTRACT. 

16.  A.  delivered  to  B.  $500  with  which  to  make  a  bet.     B.  kept 
the  money  himself,  and  A.  sues  for  its  return.     Can  he  recover? 

No.  Where  both  parties  are  engaged  in  an  illegal  transaction, 
the  law  will  not  help  either  out  of  any  loss  that  may  arise.  Morgan 
v.  Graff,  5  Den.  364;*Kcener  on  Quasi-Contracts,  2G8. 


352  QUESTIONS  AND  ANSWERS. 

Where  a  transaction  takes  place  on  Sunday,  contrary  to  a  statute, 
the  same  result  is  reached.  Thompson  v.  Williams,  58  N".  II.  Ii.48. 

17.  .4.  loaned  money  io  the  B.  Company,  contrary  to  the  statute 
under  which  the  company  was  incorporated.  He  now  sues  for 
the  payment  of  the  loan.  What  relief,  if  any,  is  he  entitled  to? 

He  is  entitled  to  recover  the  amount  by  which  the  company  is 
actually  the  richer,  for  receiving  A.'s  money.  There  is  no  public 
policy  here, as  in  the  cases  above,  which  keeps  the  court  from  acting; 
but  on  the  other  hand,  A.  could  not  recover  on  the  contract,  as  the 
statute  would  be  a  perfect  defense.  The  recovery  must,  therefore, 
be  in  quasi-contract  for  the  amount  of  the  enrichment  only,  and  if 
the  property  for  which  the  loaned  money  has  been  expended  has 
depreciated  in  value,  A.  must  suffer  the  loss.  In  re  Cork,  etc., 
Ey.  Co.,  L.'  B.  4  Ch.  App.  748. 

IS.  When  are  parties  not  "in  pari  delicto"  so  as  to  bar  a 
plaintiff,  in  spite  of  the  fact  that  a  statute  has  been  violated? 

1.  When  the  statute  was'  enacted  for  the  benefit  of  a  class  of 
persons  to  which  the  plaintiff  belongs.     Smith  v.  Bromley,  2  Doug. 
696. 

2.  Where  the  statute  imposes  a  penalty  for  its  violation   upon 
the  defendant  only.     Smart  v.  White,  73  Me..  332;  Tracy  v.  Tal- 
mage,  14  N.  Y.  162. 

3.  When  the  illegality  depends  upon  facts  known  to  the  defend- 
ant, but.  unknown  to  the  plaintiff.     Louisiana  v.  Wood,  102  U.  S. 
294. 

4.    FAILURE  TO  PERFORM  WILFUL   OR  WITHOUT  EXCUSE. 

19.  A.  gave  B.  $5 ,,000  on  B/s  promise  to  deliver  certain  goods. 
B.  failed  to  deliver,  and  A.  sues  for  the  return  of  the  money,  as 
the  goods  have  greatly  depreciated.  Can  he  recover? 

Yes.  In  spite  of  the  fact  that  A.  here  has  a  perfectly  good  cause 
of  action  on  the  contract,  the  courts  hold  that  he  may,  at  his  elec- 
tion, sue  in  quasi- contract,  for  money  had  and  received.  Nash  v. 
Towne,  5  Wall.  (U.  S.)  689, 

The  rule  of  allowing  a  plaintiff  to  sue  in  gi/asi-contract,  when  he  has 
n  good  cause  of  action  outside  of  equitable  grounds,  upon  the  contract 
itself,  was  started  in  Dutch  v.  Warren,  1  Str.  406,  and  is  now  generally 
fixed  law.  On  principle,  however;  the  rule  is  a  bad  one,  and  allows  the 
plaintiff  to  sue  for  the  breach  of  the  contract  when  its  performance 
would  have  been  for  his  benefit,  and  to  choose  quasi-contrsict  when  a 
rptrrn  of  the  money  paid  is  more  advantageous.  Performance  of  the 
contract  was  the  only  thing  originally  considered  by  the  parties,  and 
the  plaintiff  should  be  limited  to  recovering  damngos  for  the  nonper- 
formance,  reserving  the  principles  of  <??«zs/-contract  for  application 


QUASI-CONTRACTS.  353 

where  there  is  no  way  of  recovering  on  an  express  contract.  The  only 
ground  on  which  the  rule  can  be  supported  is,  that  this  election  allowed 
the  plaintiff  is  in  the  nature  of  a  penalty  put  upon  the  defendant  for 
a  failure  to  perform.  Keener  on  Quasi-Contracts,  298-299. 

The  courts  have,  however,  held  that  in  the  case  of  a  sealed  instru- 
ment, where  the  plaintiff  has  rendered  services  or  delivered  property, 
there  can  be  no  election,  and  that  the  action  can  be  based  upon  the 
contract;  McManus  v.  Cassidy,  66  Perm.  St.  260;  though  they  still 
allow  an  election  where  the  performance  by  the  plaintiff  has  consisted 
of  the  payment  of  money.  Ballow^v.  Billings,  136  Mass.  307. 

The  amount  of  the  recovery  allowed  in  such  a  case  of  breach  of 
contract  is  limited  to  the  contract  price  actually  paid  by  the  plaintiff. 
Porter  v.  Dunn,  61  Hun  (X.  Y.),  310;  s.  c.,  131  N.  Y.  314,  320.-  This  again 
shows  the  inconsistency  of  the  rule,  as  the  defendant  should  restore 
the  amount  of  his  enrichment,  be  it  more  or  less  than  the  amount  paid, 
if  recovery  were  properly  allowed  on  gi/asi-contractual  principles. 
Thus,  if,  in  the  case  put,  the  breach  had  .been  in  the  investment  of 
the  $5,000  in  stocks  worth  $7,000  at  the  date  of  suit,  $7,000  ought  to 
be  the  amount  recovered,  as  it  would  represent  the  real  enrichment 
Keener  on  Quasi-Contracts,  301. 

c.  Failure  of  Plaintiff  to  Perform.  Contract. 
1.    FAILURE  IN  CONDITION  OF  CONTRACT. 

20.  A.,  who  is  under  contract  to  work  for  one  year,  leaves  his 
•employment  willfully,  and  without  excuse,  at  the  end  of  six 
months.     Can  he  force  his  employer  to  pay  for  six  months'  work 
at  the  contract  price? 

No.  Qj<a.sz'-contractual  principles  for  preventing  an  unjust  en- 
richment are  not  to  be  so  applied  as  to  defeat  the  express  conditions 
of  a  contract.  The  idea  of  the  parties  was  that  A.  must  work  the 
entire  year  to  entitle  him  to  payment.  Stark  v.  Parker,  2  Pick. 
267. 

A  contrary  rule,  however,  has  obtained  in  Iowa,  Indiana,  Kansas, 
Nebraska,.  New  Hampshire,  North  Carolina  and  Texas,  in  all  of 
which  States  the  principle  of  Britton  v.  Turner,  6  N.  H.  481,  is  law. 
See  also  Contracts,  Ques.  32. 

21.  A.  agreed  to  build  B.  a  house,  according  to  specifications. 
Certain  of  the  specifications  were  unintentionally  disregarded. 
What  are  A.'s  rights? 

It  is  generally  held  that  where  a  plaintiff  has  honestly  endeavored 
to  perform  a  contract,  an  unintentional  breach  will  not  prevent  a 
recover^'  on  a  quantum  mcntit  for  what  was  actually  done,  though 
he  could  not  recover  on  the  contract,  and  would  be  liable  for  the 
breach  of  the  contract.  Hayward  v.  I^eonard,  7  Pick.  181;  Keener 
•on  Quasi-Contracts,  230; -Pinches  v.  Church,  55  Conn.  186. 
23 


354  QUESTIONS  AND  ANSWERS. 

2.  PLAINTIFF  RELYING  UPON  STATUTE  OF  FRAUDS. 

22.  A.  pays  B.  $1,000,  on  an  oral  contract  that  B.  shall  con- 
_vey  to  him  certain  land.     B.  is  ready  to  convey,  but  A.  refuses 

to  accept  and  sues  for  the  return  of  the  $1,000,  basing  his  right 
to  rescind  upon  the  ground  that  his  contract  was  within  the  Stat- 
ute of  Frauds.  Could  he  recover  the  money? 

No.  There  is  no  reason  for  allowing  the  plaintiff  to  recover  the 
purchase  money,  on  the  ground  of  the  statute,  so  long  as  the 
defendant  stands  ready  to  perform  in  accordance  with  the  original 
contract.  Thomas  v.  Brown,  1  Q.  B.  Div.  714;  Sennett  v.  Shehan, 
27  Minn.  328. 

A  contrary  result  was  reached  in  King  v.  "Welcome,  5  Gray,  41, 
and  Bernier  v.  Cobat  Mfg.  Co.,  71  Me.  506,  but  these  cases  are 
without  support.  Keener  on  Quasi-Contracts,  234. 

3.  PLAINTIFF'S  PERFORMANCE  IMPOSSIBLE. 

23.  A.  agrees  to  work  for  B.  for  a  year.     At  the  end  of  six 
months  he  is  disabled.     Can  he  recover  for  the  work  already 
done  ? 

Yes.  He  could  recover  the  value  of  the  services  rendered  to 
B.  during  the  six  months,  though  he  has  no  action  on  the  contract 
itself.  The  disability  of  A.  was  not  in  the  minds  of  the  parties, 
and  it  would  be  an  inequitable  enrichment  to  B.,  if  he  should  pay 
nothing.  Wolfe  v.  Hawes,  20  N.  Y.  197;  Green  v.  Gilbert,  21 
Wis.  395. 

Where  the  sickness  should  have  been  foreseen,  however,  recovery 
has  been  refused.  Jennings  v.  Lyons,  39  Wis.  553. 

If  the  complete  performance  of  the  contract  by  the  plaintiff  is 
prevented  by  law,  a  recovery  is  also  allowed  for  the  benefits  con- 
ferred by  the  part  performance.  Jones  v.  Judd,  4  N".  Y.  411.  See 
also  Contracts.  Ques.  32. 

24.  A.  agreed  to  plaster  B.'s  house.     Before  the  work  was  com- 
pleted the  house  was  burned.     Could  A.  recover  for  the  work 
done? 

In  such  a  case  B.  has  never  realized  any  benefit  from  A.'s  work, 
though  it  may  be  said  that  his  property  was  made  valuable  at  the 
time  the  property  burned.  Still,  in  the  United  States,  recovery  is 
generally  allowed.  Cleary  v.  Sohier,  120  Mass.  210;  Hollis  v.  Chap- 
man, 36  Tex.  1. 

In  Niblo  v.  Binsse.  3  Abb.  Ct.  App.  Dec.  375.  381.  the  reason  for  a 
similar  decision  was  stated  to  be  that  the  defendant  had  agreed  to  keep 
the  building  in  existence.  If  this  were  true,  however,  the  plaintiff  need 
not  resort  to  f/HosJ-contract.  but  could  recover  for  a  breach  of  the 
snecinl  contract,  a  position  impossible  to  maintain.  Keener  on  Quasi- 
Contracts,  254. 


QUASI-COXTRACTS.  355 

The  English  law  is  contra,  and,  in  case  of  fire,  no-  recovery  whatever 
is  allowed  for  the  work  done  in  partial  performance  of  the  contract. 
Appleby  v.  Myers,  L.  K.  2  C.  P.  65. 

No  recovery  will  be  allowed  in  such  a  case,  however,  where  the  im- 
passibility of  the  performance  has  been  brought  about  through  the 
fault  of  the  plaintiff.  Parker  v.  Scott  82  Iowa,  266. 

III.  BENEFIT  CONFERRED  WITHOUT  REQUEST. 

a.     Intentionally. 

25.  A.  paid  the  necessary  funeral  expenses  of  X.,  and  seeks 
to  collect  the  amount  so  expended  from  the  executor  of  X.,  who 
was  absent,  at  a  distance,  when  X.  died.     Can  A.  recover? 

Yes.  There  is  a  legal  obligation  imposed  upon  an  executor  or 
administrator  to  bury  a  deceased  testator  or  intestate,  and  A.  hav- 
ing fulfilled  this  obligation,  under  the  circumstances  of  B.'s  ab- 
sence, could  recover  in  gwa^'-contract.  Patterson  v.  Patterson,  59 
N.  Y.  574. 

To  make  a  recovery  possible,  it  is  necessary,  as  here,  that  there 
should  ha.ve  been  a  necessity  for  A.'s  action.  If  he  had  been 
simply  officious  and  could  have  notified  B.  perfectly  well,  he  would 
not  be  allowed  to  recover  (Quin  v.  Hill,  4  Demarest,  69;  Keener  on 
Quasi-Contracts,  349),  unless  B's  previous  course  had  been  one  of 
neglect,  which  would  render  a  notification  useless.  Cunningham  v. 
Keardon,  98  Mass.  538. 

It  is  also  necessary  that  A.  should  have  made  his  expenditure 
with  the  expectation  of  charging  the  defendant.  Keener  on  Quasir 
Contracts,  350. 

26.  A.  sent  an  order  for  goods  to  B.,  who  owed  him  money. 
B.  had  sold  out  his  business  to  X.,  who  filled  A.'s  order  in  good 
faith,,  and  now  sues  for  the  value  of  the  goods  furnished.     Can 

A.  plead,  as  set-off,  his  claim  against  B.  ? 

Yes.  Though  X.  acted  in  good  faith,  A.  cannot  be  deprived  of 
the  set-off,  which  he  would  have  had  if  the  goods  had  been  fur- 
nished by  B.,  as  A.  intended.  Boulton  v.  Jones,  2  H.  &  N.  564. 

If  X.  had  not  acted  in  good  faith,  but  had  attempted  to  force 
himself  upon  A.  as  a  creditor,  ne  could  not  have  recovered,  even 
if  there  had  been  no  question  as  to  set-off.  Boston  Ice  Co.  v. 
Potter,  123  Mass.  28. 

b.     Unintentionally. 

27.  A  took  possession  of  B.'s  land,  upon  the  oral  agreement 
that  B.  would  convey  it  to  him.      While  in  possession  Jie  im- 
proved the  land,  and  now  seeks  to  recover  for  the  improvements, 

B.  having  refused  to  convey,  and  having  evicted  him,  repudiating 


356  QUESTIONS  AND  ANSWERS. 

his  agreement  on  the  ground  of  the  Statute  of  Frauds.     Can  A. 
recover,  and  if  so,  in  law  or  in  equity? 

A.  can  recover  the  benefits  derived  by  B.  by  reason  of  the  im- 
provements, but  his  action  must  be  brought  in  equity.  Courts 
have  almost  universally  refused  a  recovery  at  law  for  work  and 
labor,  on  the  ground  that  A.  was  working  for  himself,  not  for 
B.,  and  that  a  request  by  B.,  which  must  be  raised  to  support  the 
count  of  work  and  labor,  could  not  be  implied.  Cook  v.  Daggett, 
?  Allen,  439;  Welsh  v.  Welsh,  5  Ohio  St.  425. 

The  courts  in  reaching  s-uch  a  result,  however,  have  overlooked 
the  fact  that  there  manifestly  is  an  unjust  enrichment,  and  have 
resorted  to  an  unneccessary  technicality.  Keener  on  Quasi-Con- 
tracts,  369. 

If  A.  had  not  been  evicted,  he  could  not  recover,  it  would  seem,  even  in 
equity.  He  must  be  disturbed  in  his  own  enjoyment  of  the  improve- 
ments before  he  can  charge  B.  tor  the  benefits  to  the  land,  even  if  B. 
has  refused  to  convey. 

28.  A.  took  possession  of  B/s  land,  upon  the  oral  agreement 
that  B.  would  convey.     A.  now  refuses  to  accept  the  conveyance, 
though  B.  is  ready  to  convey,  upon  the  ground  of  the  Statute  of 
Frauds,  but  sues  for  improvements  made  to  the  land  while  he 
was  in  possession.     Can  he  recover? 

There  is  some  conflict,  but  the  better  decisions  are  that  no  re- 
covery is  possible.  When  B.  is  ready  to  convey,  there  is  no  reason 
for  allowing  A.  to  refuse  what  he  contracted  for  and  yet  give  him 
compensation  for  improvements,  which  will  be  his  if  he  stands 
by  his  contract.  Gillet  v.  Maynard,  5  Johns.  (N.  Y.)  85;  Farnani 
V.  Davis,  32  N.  H.  302.  See  also  Ques.  12,  13  (supra). 

29.  A.,  under  mistake  of  fact,  supposing  that  he  owned  certain 
land,  improved  it.     Can  he  recover  from  the  owner  for  such  im- 
provements, upon  learning  of  his  mistake? 

There  is  unquestionably  an  unjust  enrichment,  and  by  a  few  de- 
cisions a  recovery  in  equity  is  allowed.  Bright  v.  Boyd,  1  Story, 
478,  494;  Union  Hall  Assn.  v.  Morrison,  39  Md.  281.  These  de- 
cisions are  exceptional,  however,  and  it  is  usually  held  that  no 
recovery  is  possible.  Haggerty  v.  McCanna,  25  N.  J.  Eq.  48; 
O'Conner  v.  Hurley,  147  Mass.  145,  148;  Isle  Eoyale  Mining  Co.  v. 
Hertin,  37  Mich.  332. 

IV.  BENEFIT  CONFERRED  AT  REQUEST  BUT  NOT  IN  PERFORM- 
ANCE OF  CONTRACT. 

30.  A.,  supposing  that  she  was  B/s  legal  wife,  lived  with  him 
as  such  for  five  years.     Upon  learning  that  B.  had  another  wife 
living,  she  sues  for  work  and  labor.     Can  she  recover1? 

Yes.  B.  has  been  unjustly  enriched  by  the  services  which  were 
rendered  only  on  account  of  his  fraud,  and  though  A.  did  not  ex- 


QUASI-COXTRACTS.  357 

pect  compensation  at  the  time,  B.  would  not  be  allowed  to  use  his 
own  fraud,  as  a  defense.  Fox  v.  Dawson,  8  Martin  (La )  94- 
Higgins  v.  MeXally,  9  Mo.  493. 

Massachusetts,  however,  holds  contra.  Cooper  v.  Cooper,  147 
Mass.  370. 

This  is  a  very  different  case  from  one  where  both  parties  know  the 
facts  and  a  gratuity  is  intended.  In  such  a  case  the  plaintiff  cannot 
change  her  mind  and  sue  for  compensation  later.  There  is  then  no 
unjust  enrichment  on  which  a  recovery  could  be  allowed.  Wyley  v. 
Bull,  41  Kan.  206;  Doyle  v.  Trinity  Church,  133  N.  Y.  372. 

Recovery  might  also  have  been  refused,  if  B.  had  acted  in  bona  ftde 
ignorance  of  the  fact  that  his  -wife  was  alive.  It  might  be  said  in 
that  case,  that  the  enrichment  of  B.  was  not  unjust  See  Burrows  v. 
Ward,  15  R.  I.  346  (semble). 

31.  A.  made  a  contract  with  B.,  for  personal  services,  which 
proved  ambiguous  in  its  terms,  and  each  thought  that  the  terms 
were  to  be  construed  differently.     What  rights  has  A.  to  wages 
for  the  work  done  ? 

He  cannot  recover  on  the  contract,  as  there  really  was  no  con- 
tract at  all,  owing  to  the  lack  of  mutuality.  He  would  be  allowed 
the  market  price  of  his  labor,  in  </ua.yi-contract.  Turner  v.  Webster, 
24  Kan.  38. 

V.  WAIVER  OF  TORT. 

• 

32.  A.  stole  B.'s  horse  and  sold  it  for  $100.     Has  A.  any 
means  of  securing  the' money? 

Yes.  In  spite  of  the  fact  that  B.  may  call  upon  the  vendee  to 
give  up  the  horse,  he  may  also  "  waive  the  tort "  of  A.,  and  sue 
him  in  ^HO  si-contract,  for  money  had  and  received.  Keener  on 
Quasi-Contracts,  170,  and  cases  cited. 

The  term  "  waiver  of  tort,"  though  generally  used,  is  misleading. 
The  plaintiff  really  waives  nothing.  He  simply  has  an  election  to  sue 
in  tort  or  assttntpsit  as  he  elects.  Keener  on  Quasi-Contracts,  159. 

The  mere  sale  of  the  converted  property  is  not  sufficient  to  allow  re- 
covery. The  defendant  must  actually  have  received  the  money  for 
the  goods  sold.  Moody  v.  Walker,  89  Ala.  619,  621;  Budd  v.  Hiler,  27 
N.  J.  Law,  43. 

33.  A.  converted  B.'s  goods  and  used  them.     Can  B.  waive 
the  tort,  and  sue  for  goods  sold  and  delivered  in  quasi-contract? 

The  courts  are  almost  equally  divided,  but  the  better  view  is  that 
the  count  will  be  sustained.  The  courts  which  refuse  to  allow  the 
count  go  on  the  ground  that  the  fiction  of  a  sale  is  more  than 
the  court  has  the  power  to  raise,  where  there  is  a  mere  tort;  but  if 


358  QUESTIONS  AND  ANSWEKS. 

B.  had  sold  the  goods,  the  same  courts  would  allow  an  action  for 
money  had  and  received,  which  is  no  less  fictitious.  Keener  on 
Quasi-Gontracts,  192-195. 

The  States  allowing  the  count  of  goods  sold  and  delivered  are 
California,  Georgia,  Illinois,  Indiana,  Kansas,  Michigan,  Mississippi, 
New  York,  North  Carolina,  Tennessee,  Texas,  West  Virginia  and 
Wisconsin. 

Contra,  are  Alabama,  Arkansas,  Delaware,  Maine,  Massachusetts, 
Missouri,  New  Hampshire,  Pennsylvania,  South  Carolina  and  Ver- 
mont. See  Keener  on  Quasi-Contracts,  193,  note  3,  cases  col- 
lected. 

34.  A.  sells  goods  to  B.  on  six  months'  credit,  but  later  finds 
that  B.'s  representations  which  induced  the  sale  were  fraudulent. 
Can  he  sue  at  once  in  quasi-contract  for  goods  sold  and  delivered? 

•  Yes.  The  basis  of  every  contract  is  good  faith.  If  the  special 
contract  be  voidable  on  the  ground  of  fraud,  the  plaintiff  may 
disregard  it,  and  bring  assumpsit  for  goods  sold.  Wilson  v.  Foree, 
6  Johns.  (N.  Y,)  110.  Massadhu&etts,  however,  holds  contra. 
Allen  v.  Ford,  19  Pick.  217. 

35.  A.  unlawfully  dispossesses  B.  of  his  land,  and  B.  then 
sues  A.  for  use  and  occupation  to  recover  the  rental  value  of  the 
property  while  A.  was  in  possession.     Can  he  recover? 

•  No.  The  doctrine  .of  gwa^'-contracts  has  not  been  extended 
to  this  class  of  cases,  for  purely  historical  reasons.  It  was  a  prin- 
ciple of  the  common  law  that  a  plaintiff  should  pursue  his  highest 
remedy,  and  indebitatus  assumpsit  was  not  allowed  in  such  a  case. 
By  the  common  law,  debt  was  the  proper  action  for  the  recovery  of 
rent  due,  and  as  that  was  considered  a  higher  remedy  than  in- 
debitatus assumpsit,  the  latter  count  was  not  allowed  in  any  action 
for  the  collection  of  rent.  The  common  counts,  in  general,  have, 
therefore,  been  disallowed  in  such  cases.  Keener  on  Quasi-Con- 
tracts, 191. 

36.  A.'s  goods  were  converted  by  B.  and  C.     A.  sues  B.  in  as- 
sumpsit and  gets  judgment  which,  however,  is  unsatisfied.     Can 
A.  then  sue  C.  in  a  count  for  money  had  and  received,  the  goods 
having  been  sold? 

Yes.  Where  there  is  a  right  of  action  against  two  persons,  the 
election  as  to  one  should  not  affect  the  plaintiff's  right  as  to  the 
other,  and  he  may  sue  him  in  either  form  of  action  he  sees  fit.  In 
the  case  of  several  tort-feasors  the  plaintiff's  resources  are  only  ex- 
hausted when  he  has  obtained  judgment  and  satisfaction  from  one 
or  an  unsatisfied  judgment  against  all.  Huffman  v.  Hughlett,  11 
Lea  (Tenn.),  549,  554;  Keener  on  Quasi-Contracts,  208-213. 


QUASI-COXTKACTS.  359 

New  York,  however,  holds  the  contrary.  The  fiction  of  the  count 
for  money  had  and  received  is  there  carried  to  the  extent  of  saying 
that  by  the  use  of  such  a  count,  the  plaintiff  has  "  decided  to  sell  the 
property,"  and  so  has  no  right  of  action  against  a  second  converter. 
Terry  v.  Munger,  121  N.  Y.  161,  166. 

Where  there  is  but  one  converter,  and  the  plaintiff  has  prosecuted  his 
action  to  judgment  in  either  trover  or  assumpsit,  he  is  held  to  have 
made  a  final  election  of  remedy  on  the  principle  that  a  man  must  not 
be  twice  vexed  for  the  same  cause.  Bradley  v.  Brigham,  149  Mass.  141, 
145. 

An  unsatisfied  demand  is  not  an  election.  Valpy  v.  Sanders,  5  C. 
B.  887.  Nor  an  action  actually  begun,  if  discontinued  before  judgment. 
Keener  on  Quasi-Contracts,  204  et  seq.  Contra,  however,  is  Thompson 
v.  Howard,  31  Mich,  309,  312. 

VI.  RECOVERY  OF  MONEY  PAID  BY  COMPULSION. 

a.     Under  Legal  Process. 

37.  A,  recovers  judgment  against  B.,  and  issues  execution, 
whereupon  B.  pays.     On  appeal,  the  judgment  is  reversed.    Can 
B.  recover  the  money  on  a  count  for  money  had  and  received? 

Yes.  B.  was  forced  to  pay  money,  which  A.  cannot  now  keep 
in  good  conscience.  Clark  v.  Pinney,  6  Cow.  (N.  Y.)  297. 

The  recover}'  is  equally  under  compulsion,  so  as  to  allow  recovery, 
if  judgment  has  simply  been  entered  and  paid  without  execution 
issuing.  Scholey  v.  Halsey,  72  N.  Y.  578. 

So  also  a  men  may  recover  money  which  he  has  paid  to  avoid 
unlawful  arrest,  or  to  be  released  therefrom.  Heckman  v.  Swartz, 
€4  Wis.  48. 

b.     To   Avoid   Injury   to   Plaintiff's   Business. 

38.  A.   wrongfully  claims  $500  from  B.,  and  threatens  to  cut 
off  the  water  supply  of  B.'s  mill  if  the  claim  is  not  paid.     Can 
B.  recover  the  money  so  paid? 

Yes.  Though  the  plaintiff's  property  or  person  is  not  threatened 
with  molestation,  a  threatened  injury  to  his  business  is  considered 
a  sufficient  compulsion  to  allow  of  a  recovery  of  the  money  so  paid 
on  an  unjust  claim.  "\Vestlake  v.  St.  Louis,  77  Mo.  47;  Carew  v. 
Rutherford,  106  Mass.  1. 

c.    To  Induce  the  Performance  of  a  Duty. 

39.  A  sheriff  unlawfully  exacted  money  from  B.,  as  a  condi- 
tion lo  issuing  a  warrant.     Can  B.  recover  the  money,  as  paid 
under  duress? 

Yes.  The  refusal  of  the  sheriff  to  perform  his  duty,  without  pay- 
ment, is  sufficient  duress  to  allow  recovery.  Dew  v.  Parsons,  2 
B.  &  Aid.  562. 


SALES. 


I.     GENERALLY. 

1.  Define  a  sale  and  state  its  requisites. 

A  sale  is  the  transfer  of  the  absolute  or  general  property  in  a 
thing  for  a  price  in  money.  Benjamin  on  Sales  (6th  Am.  ed.),  §  1, 

The  requisites  of  a  sale  are:  (1)  A  mutual  agreement,  as  in  all  con- 
tracts; (2)  competent  parties;  (3)  a  money  consideration;  (4)  a 
transfer  of  the  absolute  or  general  property  in  the  thing  sold  from 
the  seller  to  the  buyer. 

The  money  price  is  what  distinguishes  a  sale  from  an  exchange,  or 
barter.  2  Kent's  Com.  477.  The  price  must  be  real  and  not  nominal, 
and  must  be  fixed  or  susceptible  of  computation.  When  the  parties 
agree  that  the  price  shall  be  appraised  by  third  parties,  the  price,  when 
fixed,  becomes  a  part  of  the  contract,  but  until  it  is  so  fixed,  property 
cannot  pass  even  when  one  of  the  parties  prevents  the  appraisal,  un- 
less the  property  has  been  delivered  to  the  buyer,  when  the  price 
would  be  its  reasonable  value. 

A  transfer  of  property  is  necessary.  Thus,  where  a  vessel  is  put 
up  at  auction  and  bid  in  by  the  owners'  agent  to  prevent  loss,  there  is 
no  sale.  Barker  v.  Marine  Ins.  Co.,  2  Mason  (U.  S.),  369. 

2.  How  far  does  the  rule  of  caveat  emptor  apply  to  sales? 

The  rule  is  applicable  in  almost  all  cases.  The  general  rule  is 
that  no  one  can  make  a  valid  sale  except  the  owner  or  his  lawful 
representative,  and  the  real  owner  may  recover  from  one  claiming 
by  a  sale  from  a  person  not  the  owner.  Benjamin  on  Sales  (6th 
Am.  ed.),  §§  641,  965. 

There  is  one  great  exception  to  this  rule,  however,  in  the  case  of 
negotiable  securities.  The  transfer  of  such  a  security  to  a  bona  fide 
purchaser  for  value,  without  notice,  vests  a  good  title  in  the  purchaser, 
though  the  seller  had  no  title  whatever.  Benjamin  on  Sales  (6th  Am. 
ed.),  §  15.  See  Bills  and  Notes,  Ques.  13-24. 

3.  A.  contracts  to  sell  certain  goods,  which,  unknown  to  him,, 
have  been  destroyed  by  fire.     Has  a  sale  iaktn  place? 

No.  The  last  requisite  of  a  sale,  the  transfer  of  property,  is  im- 
possible, if  the  property  has  ceased  to  exist. 

360 


SALES.  361 

"There  must  be  a  thing  sold,  which  forms  the  subject  of  the  con- 
tract. If,  then,  ignorant  of  the  death  of  my  horse,  I  sell  it,  there  is  no 
sale  for  want  of  the  thing  sold.  For  the  same  reason,  if,  when  we  are 
in  Paris,  I  sell  you  my  house,  both  being  ignorant  that  it  has  been 
wholly,  or  in  great  part,  burnt  down,  the  contract  is  null,  because  a 
house,  which  was  the  subject  of  it,  did  not  exist;  the  site  and  what 
is  left  of  the  house  are  not  the  subject  of  our  bargain,  but  only  the 
remainder  of  it."  Pothier,  Contrat  de  Yente,  4;  Benjamin  on  Sales  (6th 
Am.  ed.),  §  76. 

4.  Can  a  farmer  make  a  good  sale  of  his  anticipated  crop  of 
potatoes  a  month  after  they  are  planted? 

The  general  question  of  whether  a  valid  sale  can  be  made  of 
property  not  yet  in  existence  depends  upon  the  character  of  the 
property.  If  it  has  a  potential  existence  and  represents  the  natural 
product  of  property  already  belonging  to  the  seller,  it  may  be  the 
subject  of  a  sale.  On  this  ground  a  growing  crop  may  be  sold. 
Briggs  v.  U.  S.,  143  U.  S.  346. 

It  has  even  been  held  in  some  jurisdictions  that  there  may  be  a 
sale  of  crops  to  take  effect  at  a  future  day,  even  if  they  are  not  yet 
planted  or  sowed,  particularly  if  the  buyer  takes  possession  before  the 
intervention  of  third  persons.  Evennan  v.  Robb,  52  Miss.  653;  s.  c.,  24 
Am.  Rep.  682.  Alabama  and  Indiana  have  also  so  held.  See  also 
Colten  v.  Willoughby,  83  N.  Car.  75;  s.  c.,  35  Am.  Rep.  564,  where  it 
was  held,  that  crops  must  have  been  planted,  though  they  need  not 
have  sprouted. 

But  in  Oomstock  v.  Scales,  7  Wis.  159,  it  was  held  that  a  mortgage 
could  not  operate  upon  a  crop  which  did  not  yet  present  the  appear- 
ance of  growing  corn,  having  but  just  been  planted,  and  held  it  error  to 
instruct  the  jury  that  as  soon  as  the  grain  was  sowed  it  became  the 
subject  of  mortgage.  See  also  to  the  same  effect,  Cressey  v.  Sabre," 
!('  Hun  (N.  Y.),  120;  Hutchinson  v.  Ford,  9  Bush  (Ky.),  318;  s.  c.,  15  Am. 
Rep.  711.  A  similar  principle  is  shown  in  Milliman  v.  Meher,  20  Barb. 
(N.  Y.)  37;  Redd  v.  Burrus,  58  Ga.  574;  Shaw  v.  Gilmore,  81  Me.  396. 

5.  A.  sells  property  to  B.  which  he  does  not  own  at  the  time 
but  acquires  later.     Who  holds  the  title  to  the  property  when  it  is 
so  acquired? 

The  better  view  is  that  A.  would  have  the  title  but  would 
hold  it  in  trust  for  B.  The  title  cannot  pass  to  B.  at 
the  time  of  the  contract,  as  A.  has  no  title  to  give,  and 
it  does  not  pass  when  the  property  is  acquired,  as  A.  does 
nothing  to  pass  it.  Equity  will,  however,  impress  a  trust 
upon  the  property.  But  to  vest  even  the  beneficial  interest  in  B., 
the  property  must  be  described  in  the  contract  in  such  a  manner  a?, 
to  be  capable  of  identification.  Equity  will  not  enforce  this  trust 


362  QUESTIONS  AND  ANSWERS. 

against  third  persons  who  are  bona  fide  purchasers  from  A.    Hurst 
v.  Bell,  72  Ala.  336. 

It  has  been  held  that  there  is  no  difference  between  the  rule  in 
equity  and  at  law,  and  that  in  the  above  case  the  legal  title  would 
pass  to  B.  when  the  property  was  acquired.  Moody  v.  Wright,  13 
Met.  (Mass.)  17;  s.  c.,  46  Am.  Dec.  706.  But  this  view  is  certainly 
not  accurate  on  strict  principles  and  has  been  very  properly  criti- 
cised in  Brett  v.  Carter,  2  Low.  (U.  S.)  458. 

II.     SALE  DISTINGUISHED  FROM  OTHER  CONTRACTS. 

a.      FROM   BAILMENTS. 

6.  A.  sends  grain  to  B/s  mill,  under  the  agreement  that  he 
shall  receive  an  equivalent  amount  of  flour  in  exchange,  though 
not  made  from  the  identical  grain.  Before  the  flour  has  been 
returned,  the  grain  is  destroyed  by  fire.  Upon  whom  does  the 
loss  fall? 

Upon  B.  The  transaction  is  a  sale  of  the  grain,  and  title  passes  to 
B.  upon  the  delivery  of  the  grain.  He  must,  therefore,  suffer  the 
loss  by  fire,  and  is  still  a  debtor  to  return  the  flour.  Woodward  v. 
Semans,  125  Ind.  331;  Reherd  v.  Clem,  86  Va.  374. 

On  the  other  hand,  the  transaction  would  be  a  bailment  if  the 
flour  were  to  be  made  out  of  the  identical  wheat  delivered.  Ingle- 
bright  v.  Hammond,  19  Ohio,  337;  s.  c.,  53  Am.  Dec.  4 JO;  Ashby 
v.  West,  3  Ind.  170. 

The  above  cases  bring  out  the  exact  distinction  between  a  sale 
fnd  a  bailment.  When  the  identical  thing  delivered  is  to  be  re- 
turned it  is  a  bailment,  though  the  property  may  be  returned  in  an 
entirely  different  form.  But  where  the  other  party  is  not  required 
to  return  the  specific  property  in  any  form,  but  may  give  entirely 
different  property  of  an  equal  value,  as  cider  for  apples,  or  flour  for 
wheat,  the  transaction  is  a  sale. 

In  Slaughter  v.  Greene,  1  Rand.  (Va.)  3;  s.  c.,  10  Am.  Dec.  488, 
the  court  held  exactly  contra  to  the  above  decisions  upon  the  case 
put  in  the  question,  maintaining  that  a  miller  was  liable  as  bailee 
and  not  as  owner  in  case  of  fire.  Seymour  v.  Brown,  19  Johns. 
(N.  Y.)  44,  also  holds  the  same  way,  but  that  case  was  expressly 
overruled  in  Smith  v.  Clark,  21  Wend.  (N.  Y.)  83. 

Where  goods  are  delivered  to  be  returned  within  a  reasonable 
time,  if  not  suitable,  there  is  a  bailment  until  the  expiration  of  such 
time,  but  after  that  time  title  passes  unless  the  buyer  has  given 
notice  of  disapproval.  Hunt  v.  Wyman,  100  Mass.  198;  Childs  v. 
O'Drnnell,  84  iMich.  533. 

But  where  the  right  .of  return  depends  solely  upon  the  option  of 
the  purchaser  and  not  upon  the  fitness  of  the  goods,  title  passes  at 
once  subject  to  the  right  of  return.  Such  is  the  case  where  a 
wholesale  dealer  sells  goods  to  a  retailer  to  be  returned  by  him  if 
not  sold.  Story  on  Sales,  §  249;  Crocker  y.  Gullifer,  44  Me.  491. 


SALES.  363 

b.       FROM  PLEDGE  OR  MORTGAGE. 

7.  A.  borrows  $500  from  B.;  subsequently  A.  transfers  to 
7>.  property,  valued  at  $500.      When  would  the  transaction  be  a 
pledge  and  when  a  sale? 

The  test  applied  in  these  cases  is  this:  If  the  debt,  on  account  of 
which  the  transfer  is  made,  is  not  satisfied  by  the  delivery,  the 
transaction  is  a  pledge  or  mortgage;  if  it  is  extinguished,  it  is  a 
sale.  Benjamin  on  Sales  (6th  Am.  ed.),  p.  9. 

Again,  suppose  A.  delivers  property  to  B.,  who  pays  A.  $100,  and 
at  the  same  time  A.  reserves  the  right  to  reclaim  the  goods  on 
payment  of  a  fixed  price.  If.  B.  can  compel  the  payment  the 
transaction  will  be  held  a  loan  or  pledge  of  the  goods,  especially 
if  the  fixed  price  is  the  same  amount  paid  on  delivery.  If  it 
is  optional  with  A.  whether  or  not  he  will  pay  the  price  and 
reclaim  ihe  goods,  the  transaction  is  a  sale  and  title  passes,  the 
vendor  holding  only  a  right  to  repurchase  which  he  will  lose  if  he 
does  not  exercise  it  in  the  time  limited.  Benjamin  on  Sales  (6th 
Am.  ed.),  p.  7. 

C.         FROM   CONSIGNMENT. 

8.  A.  consigns  goods  to  B.  to  be  sold  by  him  at  such  prices  as 
he  (B.)  may  fix,,  but  A.  to  receive  the  invoice  price.     What  is  the 
transaction? 

Where  the  consignee  fixes  the  terms  and  is  liable  for  a  fixed  price, 
the  transaction  is. a  sale.  Braunn  v.  Keally,  146  Penn.  St.  519. 

Where,  however,  the  consignor  regulates  the  price  and  terms  of 
s;i!"  the  consignee  is  an  agent  and  the  contract  one  of  bailment 
merely.  Nutter  v.  Wheeler,  2  Low.  346. 

III.     THE  PASSING  OF  TITLE. 

9.  In  a  sale  of  goods,  ichen  does  the  title  pass? 

The  title  passes  as  soon  as  the  contract  is  concluded  by  which 
the  parties  intend  to  give  and  acquire  title.  And  this  is  the  case 
regardless  of  the  fact  that  the  goods  may  still  be  in  the  hands  of 
the  seller,  or  are  unpaid  for.  Tome  v.  Dubois,  6  Wall.  (U.  S.)  548; 
Wrebber  v.  Davis,  44  Me.  147. 

In  deciding  whether  or  not  the  title  has  passed  by  the  contract 
1he  intention  of  the  parties  is  the  first  and  only  consideration. 
Lester  v.  East,  49  Ind.  588;  Cook  v.  Van  Home,  76  Wis.  520. 

The  question  of  when  the  title  passes  is  one  of  the  utmost  import- 
ance. When  property  is  destroyed  which  has  been  the  subject  of  a 
contract  of  sale,  the  settling  of  the  question  of  whether  or  not  title 
has  passed  determines  upon  whom  the  loss  must,  fall,  and  the  set- 
tlement of  the  same  question  often  determines  also  the  rights  of 
creditors  or  of  a  subsequent  purchaser  from  one  of  the  parties. 
Lingham  v.  Eggleston,  27  Mich.  324;  Bicker  v.  Cross,  5  N.  H.  570. 


364  QUESTIONS  AND  ANSWERS. 

A  distinction  must  always  be  noted  between  cases  where  A.  sells- 
to  B.,  and  cases  in  which  he  only  agrees  to  sell.  In  the  latter.. 
B.  is  not  the  loser  if  the  goods  are  lost;  and  he  has  only  a  right  of 
action  for  damages  if  the  contract  is  broken.  Zwisler  v.  Storts,  30 
Mo.  App.  163. 

IV.  RULES  FOB  CONSTRUING  INTENTION  AS  TO  THE  PASSING  or 

TITLE. 

10.  What  are  the  rules  for  determining  when  title  passes,  in 
cases  where  the  intention  of  the  parties  is  not  distinctly  .ex- 
pressed ? 

In  contracts  for  the  sale  of  property  the  parties  often  fail  to 
express  their  intention  as  to  when  title  shall  pass,  or  express  it  too 
imperfectly  to  allow  of  enforcement.  In  such  cases  there  are  cer- 
tain well-recognized  rules  of  construction  which  are  followed  to 
determine  when  the  title  passes. 

a.     Sale  of  Specific  Chattel  .Unconditionally. 

Where  the  subject  of  the  contract  is  agreed  upon  -and  is  ready 
for  immediate  delivery,  the  law  presumes  an  immediate  passing  of 
title.  This  rule  is  never  questioned  where  the  price  has  been  paid 
or  where  credit  is  expressly  given.  In  Martindale  v.  Smith,  1  Q.  B. 
395,  Lord  Denman  said:  "  The  sale  of  a  specific  chattel  on  credit,. 
though  that  credit  may  be  limited  to  a  definite  period,  transfers 
the  property  in  the  goods  to  the  vendee,  giving  the  vendor  a  right 
of  action  for  the  price,  and  a  lien  upon  the  goods,  if  they  remain 
in  his  possession,  till  that  price  be  paid.  But  that  default  of  pay- 
ment does  not  rescind  the  contract."  It  is  held  in  many  jurisdic- 
tions, that  where  the  sale  is  for  cash,  payment  is  a  condition  prpce- 
dent  to  a  passing  of  title.  Hammett  v.  Linneman,  48  X.  Y.  b99. 
Massachusetts,  Minnesota,  Vermont,  Michigan,  Texas  and  Arkan- 
sas are  among  the  States  holding  similarly.  The  better  view,  how- 
ever, seems  to  be  that  held  by  the  English  courts,  and  by  some  of  the 
States,  that  in  such  a  case  title  passes  at  once,  reserving  to  the- 
seller,  however,  a  lien  upon  the  goods  for  the  purchase  price.  By 
this  doctrine  the  seller  is  secured  as  to  the  price,  but  the  risk  of 
loss  is  placed  upon  the  buyer,  who  is  the  party  in  default.  Magee 
v.  Billingsley,  3  Ala.  679.  This  view  is  favored  by  the  courts  .of 
Maine,  Xorth  Carolina,  Maryland  and  Xew  Jersey. 

But  in  all  jurisdictions  holding  that  payment  is  a  condition  pre- 
cedent, the  jury  may  find  that  the  condition  is  waived,  if  the  seller 
makes  a  complete  deliver}',  without  expressly  reserving  title.  Far- 
low  v.  Ellis,  15  Gray  (Mass.),  229;  Parker  v.'  Baxter,  86  N.  Y.  586. 

b.     Sale  of  Specific  Chattel  Conditionally. 

"Where,  by  the  agreement,  anything  remains  .to  be  done  by  the 
seller  to  put  the  goods  into  a  deliverable  condition,  title  will  not 
pass  until  such  work  has  been  done.  Thus,  the  testing  of  a  ma- 


SALES.  365 

chine,  if  agreed  upon,  would  be  a  condition  precedent  to  the  pass- 
ing of  the  title;  and  in  general,  where  the  price  depends  iipon  the 
quantity  or  quality  of  the  goods,  the  weighing,  measuring  or  testing 
of  them  are  conditions  precedent  to  the  passing  of  the  title.  Thus, 
as  in  the  rule  above,  the  law  throws  upon  the  party  in  default  the 
risk  of  the  loss  of  the  goods,  so  long  as  he  is  in  default.  Foster  v. 
Eopes,  111  Mass.  10;  Locke  v.  Priestly,  etc.,  Co.,  71  Mich.  263,  266. 

c.     Where  Chattels  are  not  Specified. 
1.    GENERALLY. 

Where  the  subject  of  the  contract  is  not  specified,  but  consists, 
e.  g.,  of  goods  to  be  manufactured  or  goods  not  forming  a  specific 
lot,  .title  does  not  pass  until  there  is  an  appropriation  of  them  to 
the  contract.  Courtright  v.  Leonard,  11  Iowa,  34;  Benjamin  on 
Sales  (6th  Am.  ed.),  §  310. 

2.    PART   OF   A    UNIFORM   MASS. 

Where,  however,  the  contract  is  for  the  sale  of  a  portion  of  a  uni- 
form mass,  as  100  barrels  of  flour  from  a  total  of  500  barrels,  it  has 
teen  held  by  some  courts  that  no  appropriation  is  necessary  to  pass 
title.  Kimberly  v.  Patchin,  19  X.  Y.  330,  is  the  leading  American 
case  favoring  this  view.  And  the  same  view  is  held  in  Virginia: 
Pleasants  v.  Pendleton,  6  Rand.  473;  in  Florida:  Watts  v.  Hendry, 
13  Fla.  523;  in  Kansas:  Kingman  v.  Holmquist,  36  Kan.  735;  and 
in  Michigan:  Wagar  v.  Detroit,  etc.,  R.  R.  Co.,  79' Mich.  648;  Mer- 
chants, etc.,  Bank  v.  Hibbard,  48  id.  118. 

But  this  view  is  not  good  on  principle  and  is  contrary  to  the  great 
mass  of  authority,  an  appropriation  being  held  necessary  in  such 
a  case  in  almost  all  of  the  jurisdictions  Ferguson  v.  Northern 
Bank,  14  Bush  (Ky.),  555,  and  authorities  cited.  In  Blackburn  on 
Sales,  p.  20,  the  learned  author  says:  "  Until  the  parties  are  agreed 
as  to  the  specific  identical  goods,  the  contract  can  be  no  more  than 
a  contract  to  supply  goods  answering  a  particular  description;  and 
since  the  vendor  will  fulfill  his  part  of  the  contract  by  furnishing 
any  parcel  of  goods  answering  that  description,  it  is  clear  that  there 
-can  be  no  intention  to  transfer  the  property  in  any  particular 
lot  of  goods  more  than  another,  until  each  has  ascertained  which 
are  the  very  goods  sold." 

An  apparent  exception  to  this  rule  exists  .in  the  case  of  grain 
in  elevators.  The  depositor  of  1,000  bushels  may  in  such  a  case 
sell  that  amount  and  give  a  good  title  to  it  without  separating  it 
from  the  common  mass.  This  rule  is  explained  by  the  understood 
custom  of  the  trade  to  sell  grain  in  that  way,  which  custom  raises 
a  presumption  of  the  intention  of  the  parties  to  pass  a  title  in  com- 
mon, whereas  the  ordinary  presumption  is  that  the  parties  intend  to 
pass  title  in  scrcraltv,  for  which  separation  and  an  appropriation  is 
necessary.  Tiedeman  on  Sales,  §  88:  Gushing  v.  Breed,  14  Allen 
(Mass.), '380;  s.  c.,  92  Am.  Dec.  777:  Merchants,  etc.,  Bank  v. 
Hibbard,  48  Mich.  118. 


3GG  QUESTIONS  AND  ANSWERS. 

3.  SUBSEQUENT  APPROPRIATION. 

Where  the  goods  forming  the  subject  of  the  contract  are  not 
specified,  there  may  yet  be  a  later  appropriation  made  with  the  con- 
sent of  the  buyer,  which  supplies  the  only  element  lacking  to  com- 
plete the  sale.  Where  A.  orders  B.  to  ship  "  1,000  bushels  of 
wheat,"  there  is  no  sale,  but  B.  has  implied  authority  to  ap- 
propriate grain  of  the  quality  ordered,  and  when  he  makes  such 
an  appropriation  by  delivering  the  grain  to  the  carrier,  the  sale  be- 
comes complete  and  title  passes.  But  to  make  a  delivery  to  a  carrier 
such  an  appropriation  as  to  pass  the  title  and  throw  the  risk  of 
loss  upon  the  buyer,  the  seller  must  have  parted  with  control  over 
the  goods.  Until  he  does  so  he  may  change  his  mind.  Eced  v. 
Phila.,  etc.,  R.  R.  Co.,  3  Houst.  (Del.)  176;  Robinson  v.  Pogue>  86 
Ala.  261. 

In  Aldridge  v.  Johnson,  7  E.  &  B.  885,  a  leading  case  on  the 
point  of  subsequent  appropriation,  there  was  a  contract  for  the 
purchase  of  100  quarters  of  bartey  out  of  bulk  in  a  granary.  The 
buyer  agreed  to  send  his  own  bags,  which  were  to  be  filled  and 
taken  to  the  station.  The  seller  filled  part  of  the  bags  and  then, 
in  anticipation  of  bankruptcy,  emptied  them  again  into  the  bulk. 
The  court  held  that  the  filling  of  the  bags  was  an  appropriation 
which  passed  the  title.  Campbell,  Ch.  J.,  said:  "  As  soon  as  each 
sack  was  filled  with  barley,  eo  instanti,  the  property  in  the  barley  in 
the  sacks  vested  in  the  plaintiff." 

There  is  also  a  sufficient  appropriation,  where,  in  the  execution  of 
a  contract,  A.  consigns  goods  to  B.,  or  where  A.  delivers  goods  to  a 
warehouseman,  under  the  agreement,  express  or  implied,  that  he 
shall  hold  the  goods  as  bailee  for  the  buyer.  The  St.  Joze  Indiano, 
1  Wheat.  (U.  S.)  208;  Hunter  v.  Wright,  12  Allen  (Mass.),  548. 

It  must  be  remembered,  however,  that  an  appropriation  is  not 
made  when  the  seller  merely  expresses  his  intention  to  select  cer- 
tain goods,  no  matter  how  definite  his  intention  may  be.  Thus, 
where  A.  had  agreed  to  sell  a  boat-load  of  coal,  and  to  fill  the 
boat,  it  was  held,  that  title  did  not  pass  until  the  boat  was  com- 
pletely full.  Hayes  v.  Pittsburg,  etc.,  Co.,  33  Fed.  Rep.  552. 

The  seller  must  exercise  the  power  of  appropriation  in  accord- 
anoe  with  the  terms  of  the  contract.  The  title  will  not  pass,  if 
he  sends  a  larger  quantity  of  goods  than  ordered,  or  a  smaller 
quantity,  or  goods  of  a  different  quality.  In  such  cases  there  is  no 
consent,  by  the  buyer,  to  the  appropriation. 

In  Cunliff  v.  Harrison,  6  Exch.  903,  A.  ordered  ten  hogsheads  of 
claret  and  B.  sent  fifteen..  A.  refused  to  keep  any  of  the  hogs- 
heads, and  it  was  held  that  the  action  for  goods  sold  and  delivered 
would  not  lie,  as  no  specific  hogsheads  had  been  appropriated  ac- 
cording to  the  contract  and  so  no  property  had  passed. 

4.  GOODS   TO    BE    MANUFACTURED. 

Where  the  goods  are' to  be  manufactured  upon  the  order  of  the 
buyer,  the  same  principles  apply,  and  the  title  does  not  pass  until 


SALES.  3G7 

the  goods  are  finished  and  appropriated  to  the  contract.  Goddard 
v.  Binney,  115  Mass.  450;  Moody  v.  Brown,  34  Me.  107. 

The  rule  is  not  altered  by  a  provision  in  the  contract  for  the 
payment  of  the  price  by  installments,  at  various  stages  of  the  work. 
Wollensak  v.  Briges,  119  111.  453;  Wright  v.  Tetlow,  99  Mass.  397; 
Andrews  v.  Durant,  11  N.  Y.  35;  s.  c.,  62  Am.  Dec.  55.  But  see 
Sandford  v.  Wiggins  Ferry  Co.,  27  Ind.  522,  which,  contrary  to  the 
other  States,  follows  the  rule  laid  down  by  the  English  courts,  that 
where  a  vessel  is  being  built  and  paid  for  in  installments  at  cer- 
tain stages  of  the  work,  the  title  to  the  part-  built  passes  upon  the 
payment  of  each  installment.  But  the  soundness  of  this  rule  is 
seriously  questioned  by  the  English  courts  themselves.  Clarke  v. 
Spence,  4  A.  &  E.  448. 

And  the  rule  also  remains  the  same,  even  when  the  entire  price 
is  prepaid,  or  where  the  buyer  superintends  the  work.  Halterline 
v.  Rice,  62  Barb.  (N,  Y.)  593. 

A  few  of  the  States  hold  that,  where  an  appropriation  is  made 
by  the  seller,  a  subsequent  acceptance  of  the  manufactured  article 
is  necessary  by  the  buyer  before  title  passes.  Moody  v.  Brown,  34 
Me.  107;  s.  c.,  56  Am.  Dec.  640;  Eider  v.  Kelley,  32  Vt.  268;  s.  c., 
76  Am.  Dec.  176.  But  principle  arid  the  weight  of  authority  are 
against  this  view.  If  the  goods  are  made  in  accordance  with  the 
terms  of  the  contract  for  their  manufacture,  no  other  assent  is 
necessary  to  the  appropriation  of  the  goods  to  the  contract,  and  title 
passes  at  once  upon  that  appropriation.  Bookwalter  v.  Clark,  11 
Biss.  (U.  S.)  126;  Higgins  v.  Murray,  73  N.  Y..  253. 

d.     Beservation  of  Jus  Disponendi. 

It  is  to  be  constantly  kept  in  mind  that  all  of  the  above  rules 
are  merely  rules  of  construction,  as  to  the  intention  of  the  parties 
regarding  the  passing  of  title,  and  are  of  application  only  when 
that  intention  is  expressed  solely  by  the  acts  or  circumstances 
referred  to.  As  has  been  stated  before,  where  the  parties,  by  their 
contract  or  their  actions,  have  expressed  their  intention  unequivo- 
cally as  to  when  title  shall  pass,  these  rules  have  no  application 
whatever.  If,  for  instance,  the  seller  ships  goods  and  takes  a  bill 
of  lading,  making  the  goods  deliverable  to  himself,  no  appropriation 
of  the  goods  to  the  contract  will  pass  the  title  to  the  buyer.  The 
bill  of  lading  rebuts  any  possible  presumption  as  to  the  passing  of 
the  title,  and  shows  that  the  seller  intended  to  retain  the  jus 
disponendi  of  the  goods.  So,  also,  where  the  seller  draws  a  bill  of 
exchange  on  the  buyer  to  be  paid  or  accepted  before  the  bill  of 
lading  is  to  be  delivered,  the  seller's  intention  to  keep  control  of 
the  goods  is  equally  clear,  and  no  inferences  can  be  drawn  against 
it.  Daws  v.  Nat.  Exch.  Bank,  91  U.  S.  618;  Nat.  Bank  v.  Mer- 
chants' Nat.  Bank,  id.  92. 

But  if  the  seller  sends  the  bill  of  lading  to  the  buyer,  and  does 
not  attach  to  it  the  bill  of  exchange,  the  title  will  pass,  though 
the  bill  is  not  honored.  Ex  parte  Banner,  2  Ch.  Div.  278. 


368  QUESTIONS  AND  ANSWERS. 

V.  PLACE  WHERE  SALE  TAKES  PLACE. 

11.  A  State  statute  forbids  the  sale  of  liquors  within  the  State. 
A  salesman  for  a  New  York  house  takes  an  order  in  that  State 
and  the  liquors  are  sent  from  New  York  C.  0.  D.     Has  the 
statute  been  violated? 

No.  The  sale,  i.  e.}  the  transfer  of  title,  takes  place,  as  shown 
above,  at  the  place  where  the  goods  are  shipped,  and  thus  appropri- 
ated to  the  contract.  The  terms  C.  0.  D.  do  not  prevent  the 
title  from  passing,  but  simply  give  the  seller  a  right  to  withhold 
delivery  until  the  purchase  money  is  paid.  Commonwealth  v. 
Fleming,  130  Penn.  St.  138-  State  v.  Hughes,  22  W.  Va.  757;  Tegler 
v.  Shipman,  33  Iowa,  194. 

The  State  of  Vermont,  almost  alone,  has  held  the  contrary  view, 
viz.:  that  title  passes  when  the  goods  are  delivered  by  the  carrier 
to  the  consignee,  and  that  the  sale  is,  therefore,  a  violation  of  the 
statute.  State  v.  O'Neil,  58  Vt.  160.  In  this  same  case,  144  U.  S. 
333,  the  Supreme  Court  held  that  the  place  where  the  sale  took 
place  was  not  a  Federal  question,  and  that  the 'ruling  of  the  Ver- 
mont court  could  not  be  reviewed,  but  the  three  dissenting  justices 
held,  that  the  sale  took  place  where  the  liquors  were  separated  and 
shipped. 

VI.  PERFORMANCE  OF  CONTRACT. 
a.     Delivery. 

1.    THE  PLACE. 

12.  A.  sells  two  parcels  of  goods  to  B.,  and  notifies  him  that 
they  are  ready  to  be  taken  away.     B.  does  not  come  for  them  and 
A.  brings  an  action  for  goods  bargained  and  sold  to  recover  the 
price  of  one  parcel,  and  sues  for  goods  sold  and  delivered  as  to  the 
other  parcel.     B.  defends  both  actions  by  pleading  that  A.  has 
not  delivered  the  goods.     How  should  the  cases  be  decided? 

The  law,  in  the  absence  of  express  stipulation,  does  not  require 
the  seller  to  make  an  actual  delivery  of  the  goods,  but  simply  to 
place  the  goods  within  the  buyer's  power,  so  that  he  may  at  once 
remove  them.  A.,  therefore,  had  made  a  sufficient  delivery  to  sus- 
tain an  action  for  goods  bargained  and  sold,  although  the  goods  had 
not  left  his  possession.  Smith  v.  Wheeler,  7  Oreg.  49;  Benjamin  on 
Sales  (6th  Am.  ed.),  §  1018. 

On  the  same  principle,  where  the  contract  is  silent  upon  the  sub- 
ject, the  place  where  the  goods  are  at  the  disposal  of  the  buyer 
is  where  they  are  when  sold,  "  unless  some  other  place  is  required 
by  the  nature  of  the  article,  or  by  the  usage  of  trade,  or  the  previous 
course  of  dealing  between  the  parties,  or  is  to  be.  inferred  from  the 
circumstances  of  the  case."  Hatch  v.  Standard  Oil  Co.-,  100  U.  S. 
134;  Benjamin  on  Sales  (6th  Am.  ed.),  §  1022. 

But  to  sustain  an  action  for  goods  sold  and  delivered,  an  actual 
delivery  is  necessary;  and  in  the  second  action,  therefore,  B/s  de- 


SALES.  369 

fense  would  be  good.  Atwood  v.  Lucas,  53  Me.  508;  s.  c.,  89  Am. 
Dec.  713. 

Where  the  seller  is  required  to  send  the  goods  to  the  buyer, 
delivery  to  a  carrier  is  equivalent  to  delivery  to  the  buyer  himself, 
and  passes  title.  The  carrier  is  the  agent  for  the  buyer  for  the 
transportation.  Benjamin  on  Sales  (6th  Am.  ed.),  §§  490,  491, 
1040. 

The  goods,  however,  must  be  forwarded  in  the  usual  way  sup- 
posed to.  be  in  the  contemplation  of  the  parties.  Comstock  v. 
Affoelter,  50  Mo.  411.  And  the  seller  must  put  the  goods  in  proper 
condition  for  transportation,  and  have  a  proper  bill  of  lading  is- 
sued, etc.  Finn  v.  Clark,  12  Allen  (Mass.),  522;  Benjamin  on 
Sales  (6th  Am.  ed.),  §  1029.  He  must  also  follow  shipping  direc- 
tions explicitly,  where  there  are  any,  or  he  will  be  liable  for  any 
loss  which  may  occur.  Wheelhouse  v.  Parr,  141  Mass.  593;  Benja- 
min on  Sales  (6th  Am.  ed.),  p.  912  b.  And  the  buyer  must  be 
given  notice  of  the  time  and  place  of  shipment.  Bradford  v.  Mar- 
bury,  12  Ala.  520. 

2.    TIME  OF  DELIVERY. 

13.  By  the  contract  of  sale  A.  is  to  call  for  the  goo'ds  sold 
within  ten  days.  He  does  not  caV  for  them  within  that  time,  and 
when  he  does  call  for  them  later,  delivery  is  refused.  What 
remedy  has  he  ? 

He  has  none.  Where  the  time  is  fixed  by  the  contract,  it  con- 
trols, and  A.  having  failed  to  call  for  the  goods  within  the  time 
required  by  the  contract,  cannot  compel  delivery  later.  Blossom  v. 
Shotter,  66  Hun  (X.  Y.),  48;  aff'd,  128  N.  Y.  679.  So  also  where 
the  seller  fails  to  make  delivery  within  the  specified  time,  the  buyer 
need  not  accept  the  goods,  if  offered  at  a  later  time.  Cleveland 
Boiling  Mill  Co.  v.  Ehodes,  121  U.  S.  255. 

In  equity,  however,  time  is  not  always  deemed  to  be  of  the  es- 
sence of  the  contract,  unless  the  parties  have  so  treated  it  or  it 
follows  necessarily  from  the  circumstances  of  the  contract.  Carter 
v.  Phillips,  144  Mass.  100. 

Even  where  one  tender  of  th^goods  has  been  refused  for  good 
reason,  if  the  time  for  delivery  has  not  expired  the  seller  may 
still  tender  another  deliver}-,  which  must  be  accepted,  if  good. 
Borrowman  v.  Free,  4  Q.  B.  Div.  500. 

The  time  of  delivery  may  be  postponed  at  the  verbal  request  of 
either  party,  but  in  such  a  case  either  buyer  or  seller  may  still  insist 
upon  the  performance  of  the  contract  at  any  time,  unless  the  agree- 
ment of  postponement  is  a  new  contract  reduced  to  writing,  so  as 
to  satisfy  the  Statute  of  Frauds.  Hickman  v.  Haynes,  L.  R.  10  C. 
P.  598;  Benjamin  on  Sales  (6th  Am.  ed.),  §.216.  * 

But  if  the  agreement  for  the  performance  of  the  contract  at  a 
different  time  is  made  after  the  time  for  performance  has  passed,  a 
new  consideration  is  necessary.     Hill  v.  Blake,  48  N".  Y.  Super.  Ct. 
253;  aff'd,  97  K  Y.  216. 
24 


370  QUESTIONS  AND  ANSWERS. 

3.  EIGHT  TO  INSPECT. 

14.  A.  notifies  B..  that  goods  sold  to  him  are  ready  for  delivery, 
but  when  B.  seetct  to  inspect  them  he  is  not  allowed  to  open  the 
cases.     He  then  refuses  to  accept  delivery.     Has  he  a  good  de- 
fense to  an  action  for  goods  bargained  and  sold? 

Yes.  The  seller  must  give  the  buyer  an  opportunity  to  examine 
the  goods  to  ascertain  that  they  are  in  accordance  with  the  terms 
of  the  contract,  and  without  such  an  opportunity  the  delivery 
is  not  valid.  Isherwood  v.  Whitmore,  11  M.  &  W.  347;  Erwin  v. 
Harris,  87  Ga.  333;  Benjamin  on  Sales  (6th  Am.  ed.),  §-1042, 
p.  912  c. 

4.    DELIVEEY  BY  INSTALLMENTS.     . 

15.  A.  contracts  for  the  sale  of  5,000  tons  of  rails,  agreeing  to- 
ship  1,000  tons  per  month.     He  ships  but  400  tons  in  the  first- 
month,  and  800  tons  in  the  second.     Must  the  buyer  go  on  with 
the  contract  ? 

No.  Where  the  contract  of  sale  is  entire,  delivery  to  be  made 
by  installments,  a  failure  to  deliver  (or  accept)  a  single  installment 
gives  the  injured  party  a  right  to  rescind  the  entire  contract,  and 
sue  for  the  damages  of  the  breach.  Norrington  v.  Wright,  115  TL 
S.  188,  and  cases  there  discussed. 

But  where  the  contract  is  not  entire,  but  consists  of  several 
independent  agreements,  a  breach  of  one  gives  no  right  to  rescind. 
Johnson  v.  Allen,  78  Ala.  387;  s.  c.,  56  Am.  Rep.  34. 

5.    CONSTRUCTIVE  DELIVERY. 

16.  ^.  contracts  to  sell  certain  bulky  goods  to  B.t  and  as  a, 
delivery  of  them  delivers  the  key  of  the  warehouse  where  they  are 
stored.     B.  objects  to  the  form  of  delivery.     Is  his  objection- 
good? 

No.  Where  goods  cannot  well  be  delivered  manually  a  con- 
structive deliverv  will  suffice.  Bfcrd  Ellenborough  says  in  Chaplin 
v.  Rogers,  1  East,  192: 

"  Where  goods  are  ponderous  and  incapable  of  being  handed 
over  from  one  to  another,  there  need  not  be  an  actual  deliv- 
ery, but  it  may  be  done  by  that  which  is  tantamount,  such  as 
the  delivery  of  the  key  of  a  warehouse  in  which  the  goods  are 
lodged,  or  by  the  delivery  of  other  indicia  of  property."  See 
also  Benjamin  on  Sales  (6th  Am.  ed.),  §§  1043,  1044.  The 
act  relied  upon  as  a  constructive  delivery  should,  however,  be  in- 
dicative of  a  purpose  to  pass  the  property  absolutely  to  the  buyer. 
Barrett  v.  Turner,  2  Neb.  172.  Thus,  there  is  good  constructive 
deTivery  in  the  ease  of  a  transfer  of  a  warehouse  receipt;  Davis  v. 
Russell,  52  Cal.  611;  or  of  a  bill  of  sale;  Whipple  v.  Thayer,  16 


SALES.  371 

Pick.  (Mass.)  25;  or  of  a  bill  of  lading  for  goods  in  transit.      Benja- 
min on  Sales  (6th  Am.  ed.),  §  1044. 

So,  also,  where  cattle  are  roaming  at  large,  collecting  them  and 
branding  with  buyer's  name  is  held  sufficient  delivery.  Walden  v. 
Murdock,  23  Cal.  541;  s.  c.,  83  Am.  Dec.  135. 

b.     Acceptance. 

17.  A.  ships  B.  certain  goods,  and  B.  sends  word  that  he  will 
not  accept  the  goods  as  they  were  not  shipped  within  the  time 
agreed.     He  later  writes,  complaining  of  the  amount  of  freight 
charged,  and  saying  that  he  will  do  the  best  he  can  to  sell  the 
goods.     Have  the  goods  been  accepted? 

Acceptance  is  more  than  a  mere  receipt  of  the  goods.  It  includes 
a  receipt  in  accordance  with  the  terms  of  the  contract,  and  with  an 
intention  to  retain  the  goods.  If  the  goods  are  not  tendered  in 
accordance  with  the  terms  of  the  contract,  the  buyer  need  not  re- 
turn them,  and  is  protected  if  he  simply  notifies  the  seller  of  his 
nonacceptarice,  and  that  the  goods  are  held  at  the  seller's  risk. 
Wartman  v.  Breed,  117  Mass.  18;  Benjamin  on  Sales  (6th  Am.  ed.), 
p.  912  d.  But  if  the  conduct  of  the  buyer  is  such  as  to  show  an  ac- 
ceptance and  an  intention  to  retain  the  goods,  he  is  bound.  In 
the  case  put,  the  second  letter  would  be  a  sufficient  acceptance 
and  would  be  a  waiver  of  all  former  objections.  Hayner  v.  Sherrer, 
2  111.  App.  536;  Benjamin  on  Sales  (6th  Am.  ed.),  §  1051. 

So  also  a  buyer  is  bound,  if  he  does  not  exercise  his  right  to  re- 
ject the  goods  within  a  reasonable  time;  Hirshorn  v.  Stewart,  49 
Iowa,  418;  Treadwell  v.  Reynolds,  39  Conn.  31;  or  if  he  does  any 
act  in  connection  with  the  goods  which  he  would  only  be  entitled 
to  do  as  owner.  Brown  v.  Foster,  108  N.  Y.  387.  In  such  cases, 
the  .buyer  is  held  to  have  waived  any  objections  which  he  may  have 
had  a  right  to  make. 

Even  when  goods  are  sent  without  oeing  ordered,  the  party  to 
whom  they  are  sent  may  render  himself  liable  for  the  price  of  the 
goods,  by  exercising  the  rights  of  ownership  over  them.  Bartholo- 
mae  v.  Paull,  18  W.  Va.  771;  Schouler  on  Personal  Property  (2d 
ed.),  §  407. 

Acceptance  may,  however,  be  conditional  upon  some  further  act 
to  be  done  by  the  seller,  in  which  case  the  buyer  is  not  liable  for 
the  goods  until  the  condition  has  been  performed.  Belt  v.  Stetson, 
26  Minn.  411. 

18.  A.  orders  certain  cards,  subject  to  his  acceptance  of  a 
proof.     Proof  is  submitted  and  approved  and  the  cards  are  then 
delivered  with  a  material  misprint  which  had  been  overlooked 
by  A.     A.  refuses  to  accept  the  cards.     Has  the  printer  any 
remedy? 

Yes.  He  can  recover  the  contract  price  for  the  cards.  Accept- 
ance once  made  is  conclusive  and  binding  upon  the  purchaser. 


372  QUESTIONS  AXD  ANSWERS. 

Giles  Lithographic,  etc.,  Co.  v.  Chase,  149  Mass.  459.  And  a 
buyer  not  only  waives  any  objection  as  to  the  quality  of  the 
goods  by  acceptance,  but  he  also  waives  objection  as  to  quantity,  or 
that  the  goods  were  not  delivered  within  the  time  required.  Story 
on  Sales  (4th  ed.),  §  405;  Benjamin  on  Sales  (6th  Am.  ed.),  §  1051, 
note;  Baldwin  v.  Farnsworth,  10  Me.  414;  s.  c.,  25  Am.  Dec.  252. 
The  buyer  may,  however,  show  a  qualified  acceptance  and  a  reser- 
vation of  a  right  to  claim  damages  for  delay.  Bock  v.  Healy,  8 
Daly  (N.  Y.),  156;  Baldwin  v.  Farnsworth,  10  Me.  414.  But"  see 
Adams  v.  Helm,  55  Mo.  468  (contra). 

19.  After  accepting  goods,  A.  finds  that  there  has  been  a  breach 
of  warranty  in  a  certain  particular.     Under  ivhat  circumstances, 
if  any,  can  he  obtain  redress  for  such  a  breach? 

The  acceptance  of  goods  is  not  a  waiver  of  a.  right  to  sue  for  a 
breach  of  warranty,  unless  the  breach  was  manifest  at  the  time 
the  goods  were  received.  Except  under  such  circumstances  A. 
could  recover  the  injury  suffered  in  the  above  case.  Clements  v. 
Smith,  9  Gill  (Md.),  156;  Bagley  v.  Cleveland,  etc.,  Co.,  21  Fed. 
Rep.  164. 

20.  A.  sells  certain  goods  to  B.  U'ithout  fixing  any  terms  for 
payment.     A.  refuses  to  deliver  without  a  cash  payment,  and  B. 
sues  for  nondelivery.     Can  he  recover? 

No.  "  Where  no  time  is  agreed  on  for  payment,  it  is  understood 
to  be  a  cash  sale,  and  the  payment  and  the  delivery  are  immediate 
concurrent  acts,  and  the  vendor  may  refuse  to  deliver  without  pay- 
ment, and  if  the  payment  be  not  immediately  made  the  contract 
becomes  void."  2  Kent's  Com.  (13th  ed.)  *497. 

Where,  however,  credit  is  to  be  given  by  the  contract,  the  buyer 
has  a  right  to  the  possession  of  the  goods  at  once,  and  the  seller 
has  no  right  of  action  until  the  time  of  credit  has  expired,  and 
an  agreement  to  pay  before  the  expiration  of  the  time  of  credit  is 
void  for  want  of  consideration.  Heritage  v.  Lawrence,  2  F.  &  F. 
532. 

If  the  seller  makes  delivery  without  requiring  payment,  credit 
will  be  implied,  and  the  buyer  has  a  reasonable  time  after  a  demand, 
for  making  payment.  Anstedt  v.  Sutter,  30  111.  164. 

21.  A.  sends  goods  to  B.,  with  a  request  to  "  remit  as  soon  as 
received/'    B.  sends  the  money  by  mail  nnd  it  is  never  received. 

A.  sues  for  the  price  of  the  goods.     Can  he  recover? 

The  purchaser  is  discharged,  if  he  makes  payment  as  directed 
by  the  seller,  and  it  is  held  that  in  such  a  case  as  the  above,  the 
language  of  A.  would,  under  ordinarv  circumstances,  authorize 

B.  to  send  the  money  by  mail.       When  such   a  course  is  au- 
thorized, either  expressly  or  by  a  course  of  dealing,  the  buyer 


SALES.  •    .       373 

is  discharged  when  he  has  deposited  the  money  in  the  mail. 
From  that  time  the  money  is  at  the  risk  of  the  seller. 
Gurney  v.  Howe,  9  Gray  (Mass.),  404;  Benjamin  on  Sales  (4th  Am. 
ed.),  §  710. 

VII.  AVOIDANCE  OF  THE  CONTRACT. 

22.  Upon  what  grounds  may  a  contract  of  sale  be  avoided? 

Upon  four  grounds: 

a.  Mistake. 

b.  Failure  of  consideration. 

c.  Fraud. 

d.  Illegality. 

a.  Contracts  of  sale,  like  all  other  contracts,  can  only  be  effected, 
by  mutual  assent;  and  where,  through  some  mistake  of  fact,  each 
was  assenting  to  a  different  proposition,  there  is  no  binding  con- 
tract. Raffles  v.  Wichelhaus,  33  L.  J.  Exch.  160;  Stoddard  v.  Ham, 
129  Mass.  383.  See  also  Contracts,  Ques.  3,  9. 

b.  Where  a  note  is  given  in  payment  of  goods  and  is  due  before 
the  goods  are  to  be  delivered,  if  it  is  not  paid  at  maturity  the 
goods  need  not  be  delivered.       The  seller,  can  refuse  to  deliver 
the  goods  and  avoid  the  contract  on  the  ground  of  failure  of  con- 
sideration.    Bruce  v.  Burr,  5  Daly  (N.  Y.),  510. 

c.  A  contract  of  sale  may  be  rescinded  on  the  ground  of  fraud, 
where  the  plaintiff  can  show  (1)  that  the  alleged  representations 
were  made;  (2)  that  at  the  time  they  were  made  they  were  false, 
and  the  purchaser  knew  them  to  be  so;  (3)  that  they  were  such  as 
would  deceive  a  prudent  man;  (4)  that  they  were  believed  by-  the  sel- 
ler, and  induced  him  to  part  with  his  property.    Gregory  v.  Schoe- 
well,  55  Ind.  101. 

d.  The  illegality  of  a  contract  is  also  a  good  ground  for  avoid- 
ing- it.     Thus,  in  the  States  where  Sunday  contracts  are  held  illegal, 
actions  based  upon  such  contracts  cannot  be  maintained  in  a  court 
of  law  or  equity,  either  to  enforce  the  obligation  or  to  secure  its 
fruits  in  favor  of  either  party.     Myers  v.  Meinrath,  101  Mass.  366. 

VIII.  BREACH  OF  THE  CONTRACT. 
a.     By  the  Seller. 

1.    GENERALLY. 

23.  A.  agrees  to  sell  B.  certain  goods,  but  fails  to  transfer  title 
to  B.,  or  to  deliver  the  goods.     The  value  of,  the  goods  has  in- 
creased, and  B.  sues  for  the  possession  of  the  goods.     Under  what 
circumstances  can  he  obtain  them? 

Under  no  circumstances.  Where  title  has  not  passed,  the  pur- 
chaser's only  right  of  action  is  for  damages  for  a  failure  to  deliver 
the  goods.  'Boutell  v.  Warne.  62  Mo.  350.  For  the  measure  of 
damages  under  such  circumstances,  see  Damages,  Ques.  10-13. 


374  QUESTIONS  AND  ANSWERS. 

Where  title  lias  passed,  the  buyer  may  sue  for  damages  for  non- 
delivery or  may  maintain  trover;  and  in  some  cases,  where  tiie 
subject  of  the  sale  has  a  peculiar  value  and  cannot  be  replaced  in 
the  general  market,  the  buyer  may  even  enforce  specific  perform- 
ance. Benjamin  on  Sales  (6th  Am.  ed.),  §  1340;  Bispham's  Eq.  (5th 
ed.)  §  365;  Adams  v.  Messenger,  147  Mass.  185.  See  Equity,  Ques. 
19. 

2.    BREACH  OF  WARRANTY. 

24.  What  is  the  meaning  of  a  warranty  in  the  law  of  sales  ? 

The  word  "warranty,"  as  used  in  the  law  of  sales,  means  a  collateral 
agreement  surviving  the  passing  of  the  title,  that  the  goods  shall 
be  of  a  special  quality.  A  warranty  does  not  prevent  the  passing 
of  the  title,  and  a  breach  of  it  gives  the  buyer  a  right  of  action 
after  the  title  has  so  passed. 

In  contracts  the  word  has  a  widely  different  meaning,  not  signify- 
ing a  collateral  agreement,  but  a  part  of  the  contract,  and  a  con- 
dition of  it;  but  in  sales  the  word  should  be  limited  to  the  above 
meaning.  Hey  worth  v.  Hutchinson,  L.  R.  2  Q.  B.  447. 

25.  A.  sells  B.  certain  specific  goods,  with  an  express  warranty 
os  to  their  good  condition.     Their  condition  proves  not  to  be  as 
warranted,  and  B.  refuses  to  pay  for  them  and  offers  to  return 
them.     A.  refuses  to  take  them  back  and  sues  for  the  contract 
price.     Can  B.  defeat  the  action  upon  proof  of  his  offer  to  re- 
turn (he  goods?     What  effect  will  be  given  to  the  breach  of  war- 
ranty I    ' 

By  the  rule,  as  fixed  in  most  jurisdictions,  where  the  title  has 
passed  to  B.,  A.  would  not  be  forced  to  take  the  goods  back.     A 
«ale  with  a  warranty  is  not  a  sale  upon  a  condition  precedent  with 
a  right  to  return  the  goods  if  the  warranty  is  broken.     The  war- 
ranty is  merely  a  collateral  agreement,  a  breach  of  which  gives  the 
•other  party  the  right  to  recover  in  damages.     Street  v.  Blay,  2  B.  & 
Ad.  456;  Hey  worth  v.  Hutchinson,  L.  E.  2  Q.  B.  447.    B.'s  offer  to 
return  the  goods  would  not,  therefore,  be  a  good  defense,  in  most 
jurisdictions. 

It  is  not  to  be  taken  for  granted,  however,  that  in  every  case  of  a 
warranty  there  is  no  chance  to  return  the  goods,  even  though  the 
goods  are  specific.  The  fact  that  they  are  specific  only  raises  a  pre- 
sumption that  the  title  does  pass  and  the  passing  of  the  title  is  the  test. 
Thus,  in  criticising  Heyworth  v.  Hutchinson.  supra,  Benjamin  holds 
that  the  goods  were  not  specific,  and  that  title  did  not  pass,  and  on 
that  ground  differs  with  the  case.  Benjamin  on  Sales  (6th  Am.  ed.), 
$  1345.  It  is  to  be  noticed,  however,  that  the  court-  was  specifically 
given  the  right  to  construe  the  facts  (p.  450),  and  they  held  that  the 
goods  were  specific. 


SALES.  .      375 

In  a  number  of  jurisdictions  it  is  held  that  there  is  a  right  to 
return  the  goods,  and  that  the  warranty  is  in  the  nature  of  a  con- 
dition precedent.  Bryant  v.  Isburgh,  13  Gray,  607.  Though  not 
technically  correct,  this  view  corresponds  with  the  general  ideas  of 
ordinary  purchasers,  and  is  perhaps  more  sensible.  A  purchaser 
does  not  care  to  have  poor  goods  upon  his  hands.  This  view  is 
held  in  Pennsylvania,  Massachusetts,  Maine,  Wisconsin,  Illinois, 
Iowa.  See  Benjamin  on  Sales  (6th  Am.  ed.),  §§  623-634,  1341. 

The  original  idea  was,  that  a  warranty  was  an  agreement  so 
separate  from  the  contract  of  sale  itself,  that  the  buyer  could  only 
obtain  redress  for  a  breach  ofwarranty  by  a  cross-suit,  and  could 
not  even  set  it  up  in  defense,  to  reduce  the  damages.  This  rule, 
however,  has  yielded  to  the  influence  of  common  sense  and  con- 
venience; and  to  prevent  litigation  and  expense  it  has  been  re- 
peatedly held  in  the  United  States,  without  statutory  provisions, 
that  where  a  warranty  has  been  broken  by  fraud  or  otherwise,  such 
facts  may  be  relied  upon  in  defense  to  an  action  upon  such  con- 
tracts, to  mitigate  damages.  Withers  v.  Greene,  9  How.  (U.  S.) 
213,  224-231;  Benjamin  on  Sales  (6th  Am.  ed.);  §  1343. 

i 

26.  A.  sold  cotton  to  B.  "  to  arrive,"  and  guaranteed  it  equal 
to  sample.    If  the  quality  was  inferior  a  fair  allowance  was  to  be 
made,  as  fixed  by  arbitration.     Upon  arrival  the  cotton  proved 
to  be  of  an  entirely  different  kind,  requiring  different  machin- 
ery, and  B.  refused  to  accept  it,  or  to  submit  to  arbitration  on  the 
question  of  allowance.     Can  he  be  compelled  to  accept  the  cotton 
and  sue  for  breach  ? 

No.  An  agreement  to  accept  the  decision  of  an  arbitrator,  fixing 
an  allowance  for  the  difference  in  the  value  of  the  goods.,  does  not 
apply  where  there  is  a  difference  in  kind,  but  only  where  the  dif- 
ference is  in  quality.  Azemar  v.  Casella,  L.  E.  2  C.  P.  431,  and  ib. 
£77. 

27.  A.  sold  ice  to  B.,  without  inspection,  to  be  shipped.    When 
it  arrived  it  was  found  to  be  poor  and  not  salable.     A.  suea  for 
the  value  of  the  ice.     Could  he  recover? 

No.  In  such  a  contract  of  sale,  there  is  an  implied  warranty,  as 
the  courts  usually  express  it,  that  the  goods  sold  will  be  merchant- 
able. Perhaps  it  is  as  well,  however,  to  say  that  the  meaning  of 
the  contract  is,  that  the  goods  will  be  fit  to  put  upon  the  market. 
Murchie  v.  Cornell,  155  Mass.  60. 

28.  A.  sold  certain  goods  to  B.,  supposing  them  to  be  as  rep- 
resented, and  insisting  that  they  should  be  examined  before  the 
purchase.     B.  only  examined  part  of  the  goods  and  then  paid 
for  all  of  them.     Later,  he  discovered  that  part  had  been  fraudu- 


376  QUESTIONS  AXD  ANSWERS. 

lently  packed,  and  sues  for  the  damages  sustained.  What  would 
be  his  measure  of  damages/  Suppose  A.  had  been  the  manu- 
facturer? 

Where  A.  is  not  the  manufacturer  and  knows  no  more  about  the 
goods  than  B.,  the  latter  would  have  no  right  of  recovery.  \Vheii 
there  is  an  opportunity  of  examination  and  there  is  no  fraud  on  the 
part  of  the  seller,  there  is  no  warranty,  and  the  rule  of  caveat 
cmptor  applies.  Barnard  v.  Kellogg,  1U  Wall.  383;  Benjamin  on 
Sales  (6th  Am.  ed.),  §  641. 

It  is,  however,  held  in  a  few  States,  that  a  seller,  even  if  not  a 
maker,  is  liable  for  defects  in  goods,  though  latent,  where  he  is 
told  for  exactly  what  purpose  the  goods  are  bought.  In  such  States 
there  is  held  to  be  an  implied  warranty  of  fitness,  and  the  seller 
must  lose,  if  the  goods  are  not  suitable  for  the  purpose.  Benja- 
min on  Sales  (6th  Am.  ed.),  §  993,  and  cases  cited. 

If,  however,  A.  were  the  manufacturer  and  so  knew  all  about  the 
goods  sold,  he  would  be  held  liable  unless  the  defects  were 
perfectly  apparent.  In  the  case  of  a  manufacturer,  the  law  implies 
a  warranty  that  the  goods  shall  be  reasonably  fit  for  the  pur- 
pose for  which  they  are  designed,  and  they  must  conform  with 
the  specifications  furnished  him  by  the  buyer.  Kellogg  Bridge 
Co.  v.  Hamilton,  110  U.  S.  108. 

But  when  the  defect  is  perfectly  apparent,  the  buyer  by  accept- 
ance consents  to  the  quality  of  the  goods  as  furnished  and  waives 
all  right  of  objection.  Gaylord  Mfg.  Co.  v.  Allen,  53  N.  Y.  515. 
See  also  Bounce  v.  Dow,  64  id.  411. 

29.  A.  sold  a  slave  to  B.,  with  express  warranty.     B.,  at  the 
time  of  the  sale,  has  notice  that  the  slave  is  suffering  from 
hernia.     He  later  sues  for  damages  sustained  by  reason  of  the 
defect.     Can  he  recover? 

Yes.  The  theory  of  a  waiver  of  a  warranty  by  accepting  the 
property  sold  with  knowledge  of  the  defect  only  applies  in  the 
case  of  an  implied  warranty.  In  the  case  of  an  express  warranty,  the 
buyer  may  take  the  goods,  if  he  desires,  and  rely  upon  his  rights 
under  the  warranty  to  recover  damages.  Story  on  Sales  (3d  ed.), 
§§  354,  355;  Stucky  v.  Clyburn,  Cheves  Law  (S.  C.),  186;  s.  c.,  34 
Am.  Dec.  590. 

The  soundness  of  such  a  rule  is  still  more  evident,  when  the 
defect  is  not  discovered  until  after  goods  have  been  used  in  part. 
Day  v.  Pool,  52  K  Y.  416. 

30.  A.  was  paid  for  certain  iron  which  he  was  to  make  and 
ship,  the  iron  to  be  of  a  specified  quality.     When  B.  received  the 
iron  he  found  that  the  quality  was  not  as  ordered,  and  he  refused 
to  accept  it  and  sued  for  the  price.      Should  he  recover? 

Yes.  Title  would  pass  to  B.  when  the  goods  were  delivered  to 
the  carrier,  only  if  the  goods  were  of  the  quality  ordered.  If 


SALES.  377 

they  are  of  that  quality  they  cannot  be  returned,  but  B.  could 
not  be  forced  to  accept  the  goods  without  inspection,  and  the 
right  to  inspect  includes  also  the  right  to  reject,  if  the  goods 
are  not  as  contracted  for.  Pope  v.  Allis,  115  U.  S.  363,  371- 
373.  If  the  goods  are  destroyed  en  route,  it  is  then  a  matter 
of  evidence  whether  or  not  the  goods  were  of  the  quality  called 
for  by  the  contract. 

The  principles  are  settled,  that  where  the  sale  "  is  of  existing  and 
specific  goods,  with  or  without  warranty  of  quality,  the  title  at 
once  passes  to  the  purchaser,  and  where  there  is  an  express  war- 
ranty, it  is,  if  untrue,  at  once  broken,  and  the  vendor  becomes 
liable  in  damages,  but  the  purchaser  cannot  for  that  reason  either 
refuse  to  accept  the  goods  or  return  them.  If  the  contract  is 
executory  and  the  goods  yet  to  be  manufactured,  no  title  can  pass 
until  delivery-  or  some  equivalent  act,  to  which  both  parties  assent, 
and  when  offered,  the  vendee  may  reject  the  goods  as  not  answer- 
ing the  bargain,  but  if  the  sale  was  with  warranty,  he  may  receive 
the  goods,  and  there  the  same  consequences  attach  as  in  the  former 
case,  and  among  others,  the  right  to  compensation,  if  the  warranty 
is  broken."  Brigg  v.  Hilton,  99  N".  Y.  517,  529. 

b.     By  the  Buyer. 

31.  A.  contracts  with  B.  for  the  sale  of  certain  goods.  Before 
the  title  has  passed,  B.  refuses  to  perform  the  contract.  What 
rights  has  A. ?  Suppose  the  goods  are  already  in  B.'s  possession? 

The  buyer's  breach  of  contract  may  consist  either  in  a  refusal 
to  accept  the  goods  or  to  pay  for  them.  In  either  case  the  seller 
has  a  right  of  action  for  a  breach  of  the  contract.  Benjamin  on 
Sales  (6th  Am.  ed.),  §  1117. 

Where  the  goods  are  already  in  the  possession  of  the  buyer,  the 
seller  may  replevy  them,  or  sue  for  their  conversion.  Story  on 
Sales  (4th  ed.),  §  440;  Salomon  v.  Hathaway,  126  Mass.  482. 

In  the  case  of  a  refusal  to  accept  the  goods,  no  special  tender  is 
necessary.  James  v.  Adams,  16  "W.  Va.  267.  The  plaintiff  must, 
however,  prove  that  he  was  ready  and  willing  to  perform  his  part  of 
the  contract.  Thus,  a  mere  notice  that  the  seller  is  ready  to  deliver 
is  not  a  sufficient  proof  of  a  tender  to  entitle  the  seller  to  recover. 
It  Tvoves  only  a  willingness  to  deliver  and  not  that  he  had  the 
goods  on  hand  ready  for  delivery.  Lassen  v.  Mitchell,  41  111.  101; 
Xewberry  v.  Furnival.  46  How.  P*.  (N.  Y.)  139. 

The  measure  of  damages  in  such  a  case  is  the  difference  between 
the  agreed  price  and  the  market  price  at  the  time  and  place  of 
delivery. 

"  WJiere  the  contract  to  deliver  goods  at  a  certain  price  is  broken, 
the  proper  measure  of  damages,  in  general,  is  the  difference  between 
the  contract  price  and  the  market  price  at  the  time  when  the 
cor> tract  is  broken,  because  the  purchaser  having  the  money  in  his 
hands  may  go  into  the  market  and  buy:  So  if  a  contract  to  accept 


318  QUESTIONS  AND  ANSWERS. 

and  pay  for  goods  is  broken,  the  same  rule  .may  be  properly  ap- 
plied, for  the  seller  may  take  his  goods  into  the  market  and  obtain 
the  current  price  for  them."  Tindal,  Ch.  J.,  in  Barrow  v.  Arnaud, 
8  Q.  B.  595,  609. 

As  to  what  is  the  market  value,  see  Damages,  Ques.  11. 

32.  A.  orders  of  B.  a  water  wheel  of  peculiar  make  and  of  a 
kind  not  kept  in  stock  and  not  available  for  general  sale.  After 
the  wheel  is  finished  and  tendered,  A.  refuses  to  accept  it.  What 
is  the  measure  of  damages? 

It  has  been  held  in  such  a  case  that  the  measure  of  damages  is 
the  contract  price.  In  Bookwalter  v.  Clark,  11  Biss.  (U.  S.)  126, 
upon  these  facts,  the  court  said: 

"  The  case  does  not  turn  in  my  judgment  upon  the  question  as 
to  whether  the  title  to  the  goods  has  passed  from  plaintiffs  to  de- 
fendant. If  the  plaintiffs  have  fulfilled  their  contract  and  de- 
livered or  tendered  delivery,  this  is  all  they  can  do;  and  if  the  de- 
fendants refuse  to  accept  the  goods,  and  being  made  to  order 
they  are  presumably  not  marketable,  I  think  the  plaintiffs 
are  entitled  to  recover  as  their  true  measure  of  damages 
for  nonfulfillment,  the  contract  price  of  the  article,  though  it  be 
conceded  that  no  title  has  passed.  The  title,  I  think,  in  such 
cases  should  pass  upon  the  rendition  of  judgment." 

There  are  some  dicta  and  a  number  of  cases  agreeing  with  the 
case  cited,  but  they  are  not  supported  by  principle  or  the  weight  of 
authority.  The  measure  of  damages,  where  title  has  not  passed, 
should  always  be  the  actual  damage  suffered  from  a  refusal  to  ac- 
cept, regardless  of  whether  the  goods  are  manufactured  to  order  or 
not.  If  the  goods  are  not  marketable  the  damages  are  increased 
by  that  fact  in  accordance  with  the  terms  of  the  rule  just  stated, 
but  it  is  only  when  the  title  has  passed  by  the  contract,  that 
the  seller  can  claim  the  contract  price  as  such.  When  the  buyer 
refuses  to  allow  the  title  to  pass,  the  action  is  for  such  refusal,  and 
the  damages  should  be  assessed  on  that  basis.  It  is  only  in  an  ac- 
tion for  goods  bargained  and  sold,  or  for  goods  sold  and  delivered, 
that  the  contract  price  is  recoverable,  and  "  the  principle  concisely 
stated  is  this,  that  a  count  for  goods  bargained  and  sold  can  only 
be  maintained  where  the  property  has  passed."  Tindal,  Ch.  J., 
in  Elliott  !v.  Pybus,  10  Bing.  512.  See  21  Am.  &  Eng.  Ency. 
581,  et  seq. 

Where  the  title  has  passed  to  the  buyer,  even  if  he  has  not 
obtained  possession,  the  seller  may  pursue  his  legal  remedies  against 
the  goods,  or  sue  the  buyer  upon  his  refusal  to  pay.  O'Brien  v. 
Jones,  47  N.  Y.  Super.  Ct.  67;  Lewis  v.  Greider,  49  Barb.  (K  Y.) 
60fi;  Story  on  Sales  (4th  ed.),  §  436. 

When,  however,  the  seller  has  once  lost  possession,  he  becomes 
merely  a  creditor,  and  has  no  right  of  action  against  the  goods. 


SALES.  379 

The  pleadings,  where  thie  title  has  passed,  must  be  on  the  com- 
mon counts  for  goods  bargained  and  sold  or  goods  sold  and  deliv- 
ered, according  as  the  possession  of  the  goods  has  not  or  has  passed. 
Benjamin  on  Sales  (6th  Am.  ed.),  §§  1126,  1127.  And  the  com- 
plaint must  allege  a  complete  performance.  Moses  v.  Banker,  2  •' 
Sweeny  (N.  Y.),  267. 

In  defending  the  action,  the  buyer  may  as  in  any  contract  set  up 
a  breach  of  a  warranty,  a  defect  in  the  goods,  default  cm  the  part 
of  the  seller  giving  a  right  to  rescind,  or  he  may  show  an  inferior 
quality  of  the  goods  in  mitigation  of  damages.  "  The  burden  of 
proof  is  upon  the  plaintiff  to  show  that  there  was  a  completed 
sale,  and  that  the  goods  sold  complied  with  the  terms  of  the  con- 
tract." 21  Am.  &  Eng.  Ency.,  pp.  592-595,  and  cases  cited. 

83.  A.  contracts  with  B.  for  the  sale  of  certain  goods.  B.. 
later,  refuses  to  accept  the  goods,  which  are  still  in  A/s  posses- 
sion. Has  A.  a  right  to  sell  the  goods  (I)  if  title  has  passed; 
(2)  if  title  has  not  passed? 

If  B.  refuses  to  accept  the  goods  without  good  cause,  A.  may, 
after  waiting  a  reasonable  time,  and  after  notice  to  B.  of  his  in- 
tention, resell  the  goods  and  hold  B.  responsible  for  the  loss  sus- 
tained. O'Brien  v.  Jones,  47  N.  Y.  Super.  Ct.  67.  In  that  case 
the  court  said: 

"  It  is  common  to  insert  provision  for  resale  in  the  terms  of  sale. 
But  I  think  it  may  be  stated  as  the  settled  rule  in  the  United 
States,  though  not  perhaps  in  England,  that  where  the  price  re- 
mains unpaid,  the  right  to  resell  exists,  even  in  the  absence  of  any 
express  stipulation,  and  the  purchaser  is  responsible  for  any  loss 
that  may  occur,  although  he  did  not  consent  to  the  resale." 

The  resale  must,  however,  be  conducted  in  such  a  manner  and  at  ' 
such  a  time  and  place  as  will  bring  the  fair  market  value  of  the 
goods.     Eeckly  v.  Tenbroeck,  63  Mo.  563. 

"  The  law  in  such  case  constitutes  the  seller,  in  possession  of 
the  goods,  the  agent  of  the* buyer  for  the  purpose  of  such  sale.  As 
such  agent,  he  must  act  in  good  faith  and  take  proper  measures  to 
secure  as  fair  and  favorable  a  sale  as  possible."  Lewis  v.  Greider, 
43  Barb.  (N.  Y.)  606. 

It  is  not  absolutely  necessary  for  the  seller  to  give  the  Buyer 
notice  of  the  time  and  place  of  the  resale  in  addition  to  the  notice 
of  his  intention  to  resell,  but  it  is  very  desirable  to  do  so  in 
orde-r  to  show  good  faith.  Lindon  v.  Eldred,  49  Wis.  305;  Holland 
v  lea,  48  Mich.  218. 

The  question  of  whether  or  not  title  has  passed  dpes  not  affect 
the  right  of  the  seller  to  resell.  The  above  rules  are  applied  in 
both  cases  indiscriminately,  in  this  country,  though  it  is  otherwise 
in  England.  21  Am.  &  Eng.  Ency.,  p.  596,  note  1,  and  p.  598. 
'See  Benjamin  on  Sales  C6th  Am.  ed.),  §  1125. 


380  -  QUESTIONS  AND  ANSWERS. 

34.  A.  sells  certain  goods  to  B.  and  gives  him  possession  be- 
fore he  is  paid.     Under  what  circumstances  would  he  have  a  lien 
for  the  price  ? 

He  could  not  have  a  lien  under  any  circumstances,  after  he  had 
parted  with  possession  of  the  goods.  "  The  right  of  lien  depends 
on  the  possession,  and  to  maintain  it  a  vendor  must  have  the  actual 
or  constructive  possession  of  the  goods.  After  they  come  into  the 
possession  of  the  buyer  according  to  the  terms  of  the  contract,  the 
lien  is  extinguished,  and  the  goods  cannot  be  reclaimed  on  the 
buyer's  becoming  insolvent."  Parks  v.  Hall,  2  Pick  (Mass.)  212. 
But  see  Benjamin  on  Sales  (6th  Am.  ed.),  §  1135. 

A  lien  for  the  contract  price  cannot  exist,  by  its  very  nature,, 
until  title  has  passed  to  the  buyer.  "  The  existence  of  a  vendor's 
lien  always  presupposes  that  the  title  to  the  goods  has  passed  to 
the  vendee,  since  it  would  be  an  incongruous  conception  that  a, 
vendor  might  have  a  lien  upon  his  own  goods."  Conrad  v.  Fisher, 
37  Mo.  App.  382.  When  title  has  passed,  it  exists  without  any 
special  stipulation  to  that  effect.  In  a  sale  of  goods  where  nothing 
is  specified  as  to  delivery  or  payment,  the  vendor  has  a  right  to 
retain  the  goods  until  payment  of  the  price.  He  has  in  all  cases 
a  lien,  unless  he  has  waived  it.  Benjamin  on  Sales  (6th  Am.  ed.), 
§1130. 

It  must  be  remembered,  however,  that  such  a  lien  extends  only 
to  the  contract  price,  and  not  to  any  other  claims  held  against  the 
buyer,  even  if  they  arose  in  connection  with  the  same  goods.  Tiede- 
man  on  Sales,  §  119. 

35.  How  may  a  lien  for  the  price  of  goods  be  divested? 

Such  a  lien  may  be  divested: 

1.  By  payment  of  the  price  in  full,  or  tender.     Corv  v.  Barnes 
(Vt.  1391),'  21  Atl.  Eep.  384.     Part  payment,  however,  will  not 
operate  to  release  any  part  of  the  goods.     The  lien  is  upon  all  of 
the  goods  for  the  entire  price.     Story  on  Sales  (4th  ed.),  §  282. 

2.  By  waiver  on  the  part  of  the  seller,  either  express,  or  im- 
plied from  the  giving  of  credit    or  the  taking  of  other  security. 
Benjamin  on  Sales  (6th  Am.  ed.),  §  1130;  Chambers  v.  Davidson, 
L.  R.  1  P.  C.  296.     Where,  however,  the  security  taken  provps 
worthless,  or  the  buyer  becomes  insolvent,  the  lien  will  revive,  if 
the  goods  are  still  in  the  possession  of  the  seller.     Milliken  v. 
Warren,  57  Me.  50. 

3.  By  delivery  of  the  goods.    As  stated  above,  the  existence  of  the 
lien  presupposes  possession. 

IX.  CONDITIONAL  SALES. 
a.    Distinguished  from  Bailment,  Lease,  Mortgage  and  Consignment. 

36.  Define  a  conditional  sale  as  distinguished  from   (1)   a 
bailment;  (2)  lease;  (3)  mortgage;  and  (4)  consignment. 

A  conditional  sale  is  a  contract,  the  purpose  of  which  is  the 
passage  of  title  from  seller  to  buyer  upon  the  performing  of  some 


SALES.  381 

agreed  condition,  or  a  contract  by  which  the  vendor  has  a  right 
to  rescind  upon  the  failure  on  the  part  of  the  buyer  to  perform 
some  condition  subsequent.  Sellers  frequently,  especially  in 
States  where  there  are-  statutes  requiring  the  registration  of 
conditional  sales,  endeavor  to  cover  up  a  conditional  sale  by  mis- 
naming the  transaction,  in  order  to  deprive  buyers  of  the  power 
of  disposing  of  property  so  sold,  or  prevent  creditors  of  the  buyers 
from  levying  upon  them.  The  courts  will,  however,  look  at  the 
real  intention  of  the  parties  and  give  the  contract  its  full  force. 

1.  Thus,  where  A.  transfers  property  to  B.,  and  reserves  the 
title  solely  for  the  purpose  of  protecting  himself  until  the  pay- 
ment of  the  agreed  price,  the  transaction  is  a  sale,  though  called  a 
bailment.     Sumner  v.  Woods,  67  Ala.  139. 

In  some  instances  courts  have  made  a  distinction  between  a  bail- 
ment with  an  option  to  buy  at  a  fixed  price,  and  a  contract  of  sale 
reserving  title  until  the  price  has  been  paid,  holding,  in  the  first 
case,  that  property  does  not  pass  in  favor  of  purchasers  of  the 
bailee,  and  in  the  second,  that  the  property  may  be  transferred  to 
batia  fide  purchasers,  and  is  subject  to  execution  in  a  suit  against 
the  buyer,  after  it  has  been  delivered.  Crist  v.  Kleber,  79  Penn. 
St.  290;  Rowe  v.  Sharp,  51  id.  26.  See  also  Bean  v.  Edge,  84  N.  Y. 
510.  In  most  jurisdictions,  however,  both  of  these  transactions  are, 
it  would  seem  rightly,  held  to  be  conditional  sales.  21  Am.  &  Eng. 
Ency..  p.  631,  note  1,  cases  cited. 

2.  Where  a  piano,  the  price  of  which  is  $700,  is  delivered  to  A. 
who  pays  $50  in  cash  and  signs  a  contract  to  pay  $50  per  month, 
rent,  for  thirteen  months,  such  an  agreement  is  a  sale,  not  a  lease, 
and  the  piano  may  be  levied  upon  by  A/s  creditors.     Murich  v. 
Wright,.  46  111.  487;  Lucas  v.  Campbell,  88  id.  447.     In  Murich  v. 
Wright  (supra),  the  court  said:     "  It  was  a  mere  subterfuge  to  call 
this  transaction  a  lease.     *     *     *     It  was  a  conditional  sale,  with 
a  right  of  rescission  on  the  part  of  the  vendor  in  case  the  purchaser 
should  fail  in  the  payment  of  his  installments,  a  contract  legal  and 
valid  as  between  the  parties,  but  made  with  the  risk  on  the  part  of 
the  vendor  of  losing  his  lien  in  case  the  property  should  be  levied 
upon  by  creditors  of  the  purchaser  while  in  possession  of  the  latter." 

It  is  not,  however,  a  conditional  sale,  where  A.  agrees  to  take, 
goods  for  a  certain  time,  and  at  the  end  of  that  time  to  pay  for 
them,  or  return  them  and  pay  for  their  use  for  the  period.  In  such 
a  case  there  is  the  necessary  element  of  compensation  for  the  use  of 
the  thing  let.  Herryford'  v.  Davis,  102  TJ.  S.  235. 

3.  The  question  of  whether  a  transaction  is  a  mortgage  or  a 
•conditional  sale  is  practically  settled  by  the  real  intention  of  the 
parties,  and  if  the  relation  of  debtor  and  creditor  never  existed 
between  the  parties,  it  is  a  conditional  sale  and  not  a  mortgage. 
Conwny  v.  Alexander,  7  Cranch  (V.  S.),  218. 

Thus,  where  a  conveyance  was  absolute  in  form  and  a  separate 
pnper  gave  a  right  to  repurchase  by  a  certain  day,  and  where  the 
transaction  was  not  connected  with  a  loan  and  there  was,  in  fact, 


382  QUESTIONS  AND  ANSWEES. 

no  debt,  such  a  transaction  Is  a  conditional  sale,  and  not  a  mort- 
gage.    Mitchell  v.  Wellman,  80  Ala.  16. 

4.  Upon  the  same  principle,  a  transfer  of  goods,  which  reserves 
a  lien  upon  the  goods  for  the  purchase  price,  is  none  the  less  a  con- 
ditional sale  for  being  called  a  consignment. 

b.     Conditions  to  Passage  of  Title. 

37.  A.  contracts  for  the  sale  of  certain  goods  to  B.  "  to  arrive" 
the  goods  being  then  at  sea.  The  vessel  is  lost.  Upon  whom  does 
the  loss  of  the  goods  fall  ? 

The  loss  must  fall  upon  A.,  as  title  never  passed  to  B.  The 
question  of  the  performance  of  a  condition  precedent  in  sales  is  the 
same  as  that  in  other  contracts;  and  where,  by  the  contract,  there  is 
a  condition  precedent  to  the  passage  of  title,  that  condition  must  be 
fulfilled  before  the  title  will  pass.  Thus,  in  the  above  case  the; 
arrival  of  the  goods  is  a  condition  precedent  to  the  passing  of  title,. 
and  the  goods  must  arrive  before  A.  can  be  relieved  of  the  liability 
for  their  loss.  Russell  v.  Nicoll,  3  Wend.  (N".  Y.)  112;  Eogers  v. 
Woodruff,  23  Ohio  St.  632. 

On  the  same  principle,  title  to  the  goods  will  not  pass  where 
something  remains  to  be  done  to  the  goods.  Frost  v.  Woodruff,  54 
111.  155.  See  also  Ques.  7  (2)  and  (3)  (supra). 

So  where  the  contract  calls  for  delivery,  at  stated  times,  of  a  cer- 
tain part  of  the  goods  of  a  fixed  quality,  the  buyer  may  repudiate 
the  entire  contract,  if  the  conditions  as  to  delivery  are  not  carried 
out  by  the  seller.  Cleveland  Boiling  Mill  Co.  v.  Rhodes,  121  U.  S. 
255;  Norrington  v.  Wright,  115  id.  188.  Where,  however,  the  con- 
tract is  separable  and  not  entire,  a  failure  to  deliver  one  install- 
ment will  not  be  a  breach  of  the  condition  as  to  the  whole  transac- 
tion. Scott  v.  Kittanning  Coal  Co.,  89  Penn.  St.  237;  Blackburn 
v.  Reilly,  47  N.  J.  Law,  290;  s.  c.,  54  Am.  Rep.  159. 

On  the  same  principle,  payment  may  be  the  condition  precedent. 
Christian  v.  Bunker,  38  Tex.  234.  And  where  the  contract  calls  for 
the  delivery  of  notes  in  payment  or  where  payment  is  made  by 
check,  the  notes  or  check  must  be  honored  before  title  passes  to  the 
buyer,  provided  that  such  is  the  expressed  intention  of  the  parties. 
•  Watertown,  etc.,  Co.  v.  Davis,  5  Del.  192,  218;  Hirschorn  v.  Canney, 
98  Mass.  149;  Cole  v.  Berry,  42  N.  J.  308  at  313.  See  Benjamin  on 
Sales  (16th  Am.  ed.)  p.  27,  note  17. 

If  payment  is  to  be  made  in  installments,  the  last  one  must  be 
paid. 

The  delivery  of  the  goods  at  a  specified  time  or  place  may  also 
be  a  condition,  precedent,  the  failure  to  perform  which  will  give  the 
buyer  the  right  to  rescind.  Jones  v.  U.  S.,  96  U.  S.  24. 

Where  o-oods  are  delivered  on  approval,  to  be  bought  if  satis- 
factory, title  of  course  does  not  pass  until  the  goods  are  accepted, 
and  until  that  time  they  remain  at  the  seller's  risk.  Pierce  v. 
Coolev,  56  Mich.  552, 


SALES.  383 

38.  A.  sells  a  horse  to  B.,,  giving  B.  a  right  to  return  him  in 
two  days  if  he  does  not  answer  the  description  given.     After  the 
two  days  have  elapsed,  A.  brings  action  for  the  agreed  price,  and 
B.  defends,  on  the  ground  that  the  horse  did  not  prove  to  be  as 
described.     Who  should  have  judgment? 

Judgment  must  be  given  for  A.  Such  a  contract  as  above,  with, 
a  condition  subsequent,  passes  the  title  absolutely,  subject  only 
to  be  defeated  by  the  return  of  the  horse.  But  where  the  time 
for  the  performance  of  the  condition  is  fixed,  the  sale  becomes 
absolute  when  that  time  has  elapsed,  and  the  buyer  becomes  liable 
for  the  price.  Moore  v.  Piercy,  1  Jones  (N.  Car.),  131. 

In  the  above  case,  or  in  any  other  where  the  buyer  acquires  a 
good  title  subject  to  be  defeated  only  by  the  nonperformance  of  a 
condition  subsequent,  a  bona  fide  purchaser  who  buys  before  the 
title  is  so  defeated  acquires  a  perfect  title.  Dearborn  v.  Turner, 
16  Me.  17;  s.  c.,  33  Am.  Dec.  630;  McKinney  v.  Bradlee,  117  Mass. 
321. 

c.     Bights  of  Third  Parties. 

39.  A.  sells  property  to  B.,  conditioned  that  title  shall  n'ot  pass 
until  the  goods  are  paid  for.     While  B.  is  in  possession  of  the 
goods  his  creditors  levy  upon  them.     Can  A.  protect  himself? 

Yes.  In  the  absence  of  fraud,  such  a  condition  is  binding  and 
A.  can  replevy  the  goods.  Bradshaw  v.  Warner,  54  Ind.  58,  62; 
King  v.  Bates,  57  N.  H.  446;  Gould  v.  Ho  well,  32  ,111.  App.  349; 
Cole  v.  Berry,  42  N.  J.  Law,  308,  at  313;  Wadley  v.  Buckingham, 
80  Wis.  230.  He  must  act  within  a  reasonable  time,  however. 
Marston  v.  Baldwin,  17  Mass.  606. 

In  many  States  there  are  statutes  requiring  conditional  sales 
to  be  recorded,  and  in  such  jurisdictions,  unless  the  contract, 
or  written  evidence  of  it,  is  recorded,  such  a  condition  as  to 
the  vesting  of  the  title  is  not  valid,  as  against  an  attaching 
creditor  or  a  bona  fide  purchaser,  unless  he  has  knowledge  of  the 
facts.  Such  statutes  are  in  force  in  Arizona:  Eev.  Stats.  (1887), 
§§  2030-2038;  Connecticut:  (1895)  §  212  (based  upon  Lee,  etc.  v. 
Cram,  63  Conn.  433):  Georgia:  Code  (1895),  §  2776;  Iowa:  Code 
(1897),  §  2905;  Kansas:  Laws  1889,  chap.  255;  Maine:  Rev.  State., 
chap.  Ill,  §  5:  Minnesota:  Gen.  Stats.  (1894),  §  4149;  Missouri: 
Rev.  Stats.  (1889),  §§  1255,  5180;  Nebraska:  Comp.  Stats.,  chap. 
32,  §  26;  North  Carolina:  Laws  1891,  chap.  240,  p.  195;  New 
Hampshire:  (1896)  chap.  140,  §  23;  New  Jersey:  Gen.  Star.  (1896), 
p.  891;  New  York:  Laws  1884,  chap.  315,  §  1;  South  Carolina:  Rev. 
State.  (1893),  §  2154;  see  also  Talmadge  v.  Oliver,  14  S.  Car. 
522;  Texas:  Rev.  Stats.  (1895),  £§  2546-2549;  Vermont:  Stats. 
(1894),  §  2290;  Virginia:  Code  (1SS7).  §  24(52:  West  Virginia,  Code 
of  1887,' chap.  74,  §  3,  and  Wisconsin,  Rev.  Stats.  (1898),  §  2317. 

In  some  States  the  courts  have  refused  to  enforce  the  rule  against 
bona  fide  purchasers,  even  without  statutory  enactments.  Hide, 


384  QUESTIONS  AND  ANSWERS. 

etc.,  Bk.  v.  West,  20  111.  App.  61;  Vaughn  v.  Hopson,  10  Bush  (Ky.), 
337;  Bias  v.  Chickefing;  (54  Md.  348;  Patchin  v.  Biggerstoff,  25 
Mo.  App.  534;  Weber  v.  Diebold,  etc.,  Co.  (Colo.  1892),  29  Pac.  Kep. 
747;  Stadtfield  v.  Huntsman,  92  Penn.  St.  53. 

X.     BONA  FIDE  PURCHASERS. 

40.  A.  purchases  a  stolen  horse  at  auction  in  good  faith,  and 
sells  him  to  B.,  who  is  also  ignorant  nf  the  theft,  for  a  valuable 
consideration.     Can  the  owner  hold  B.  responsible  for  the  value 
of  the  horse  ? 

Yes.  The  general  rule  is  that  the  buyer,  whether  bona  fide  or 
not,  acquires  no  better  title  than  his  vendor  had.  The  rule  of 
caveat  emptor  applies  and  casts  upon  the  buyer  the  risk'  of  title. 
Eobinson  v.  Skipworth,  23  Ind.  311;  Fawcett  v.  Osborn,  32  111.  425; 
e.  c.,  83  Am.  Dec.  282. 

So,  if  the  goods  are  sold  under  judicial  process,  if  the  goods  sold 
belong  to  another  person  than  the  one  against  whom  the  execution 
was  levied,  or  if  the  property  was  exempt,  or  if  the  proper  formali- 
ties we're  not  observed,  a  bona  fide  purchaser  obtains  no  title.  Aren- 
dale  v.  Morgan,  5  Sneed  (Tenn.),  703;  Cooper  v.  Newman,  45  N.  H. 
339;  Miller  v.  Thompson,  60  Me.  322. 

On  the  same  pnnciple  a  bailee  cannot  give  a  good  title.  Sanders 
v.  Wilson,  19  D.  C.  555.  Nor  can  an  agent  or  factor,  even  if  he  has 
authority  to  sell,  give  a  good  title  if  he  exceeds  his  authority,  e.  g.: 
when  he  sells  goods  in  payment  of  his  own  debts.  Gray  v.  Agnew, 
95  111.  315.  In  many  jurisdictions,  however,  Factors'  Acts  have 
been  passed  bv  which  bona  fide  purchasers  from  factors  who  have 
been  intrusted  with  the  possession  of  the  goods  and  documents  of 
title,  will  acquire  a  good  title"  if  the  purchase  was  made  in  the 
regular  course  of  business  without  notice  of  the  factor's  real 
relation  to  the  goods. 

There  are,  however,  some  exceptions  to  this  rule.  A  bona  fide 
purchaser  for  value  of  negotiable  instruments  acquires  a  good  title. 
See  Bills  and  Notes,  Ques.  14-16,  supra.  Again,  one  who  has  ob- 
tained the  legal  title  to  property  by  fraud,  which  title  is  voidable  by 
the  true  owner,  can  pass  to  a  bona  fide  purchaser  for  value 
a  perfect  and  unassailable  title.  Carme  v.  Rauh,  100  Ind.  247; 
Tiedeman  on  Sales,  §  329.  Where  also  a  principal  holds  out  his 
agent  as  having  authority,  a  bona  fide  purchaser  gets  a  good  title 
against  the  owner.  Story  on  Sales  (4th  ed.),  §  199. 

41.  A.  buys  goods  from  B.,  who  is  a  debtor  of  his,  and  pays 
no  money,  but  credits  the  agreed  price  on  B.'s  debt.     Can  he 
claim  the  protection  of  a  bona  fide  purchaser  upon  such  a  trans- 
action? 

Xo.  The  general  rule  is  that  a  pre-existing  debt  is  not  such  con- 
sideration as  to  make  a  man  a  holder  for  value.  In  a  few  jurisdio- 


SALES.  . '  385 

tions,  however,  a  pre-existing  debt  is  good  consideration.  It  is  held 
to  be  such  in  Missouri,  Illinois,  Wisconsin  and  Maine.  21  Am.  & 
Eng.  Ency.,  p.  575,  note,  and  cases  cited. 

To  be  a  bona  fide  purchaser  "  the  purchaser  must  exercise  ordinary 
care  and  discretion;  must  give  a  valuable  consideration;  and  must 
take  the  goods  in  good  faith  and  without  notice  of  the  defects  in  the 
seller's  title."  21  Am.  &  Eng.  Ency.,  p.  574. 

Actual  notice  of  the  defects  in  the  seller's  title  is  not  necessary. 
If  the  purchaser  has  reason  to  believe  from  all  the  circumstances 
that  the  transaction  is  not  proper,  but  makes  no  attempt  to  find 
out  the  facts,  h'e  cannot  claim  to  be  a  purchaser  in  good  faith. 
Loeb  v.  Flash,  65  Ala.  526;  Green  v.  Humphrey,  50  Penn.  St.  212. 
See  Bills  and  Notes,  Ques.  16. 

XI.     STOPPAGE  IN  TRANSITU. 

42.  Who  has  the  right  to  stop  goods  in  transit,  and  under 
what  circumstances  may  the  right  be  exercised? 

The  right  of  stoppage  in  transitu  belongs  only  to  vendors,  or  to 
persons  in  a  position  similar  to  that  of  vendors.  Thus,  an  agent 
who  was  personally  paid  for  the  goods  shipped,  or  bought  them  on 
his  own  credit,  may  stop  the  goods.  Seymour  v.  Newton,  105  Mass. 
27?.  A  third  person,  who  has  advanced  the  price  on  behalf  of  the 
purchaser  and  has  taken  an  assignment  of  the  bill  of  lading,  may 
also  stop  the  goods  in  transit. 

A  vendor  has  a  right  to  stop  goods  only  in  case  of  the  insolvency 
•  of  the  vendee,  while  the  goods  are  still  in  the  hands  of  the  carrier, 
qua  carrier,  and  have  not,  therefore,  come  into  the  actual  possession 
of  the  vendee.  The  right  thus  comes  into  existence  after  the 
vendee  has  acquired  title  and  right  of  possession,  but  before  he  has 
actual  possession.  Such  a  right  is  an  equitable  extension  of  the 
vendor's  lien,  under  which  he  can  repossess  himself  of  the  goods  for 
his  protection.  The  right  is  based  upon  the  "  reason  of  justice 
and  equity,  that  one  man's  goods  shall  not  be  applied  to  the  pay- 
ment of  another  man's  debts."  D'Aquila  v.  Lambert,  2  Eden,  at 
p.  77;  Blum  v.  Marks,  21  La.  Ann.  268;  Babcock  v.  Bonnell,  80 
N.  Y.  244. 

The  effect  of  the  stoppage  in  transitu  is  only  such  as  is  required  for 
the  vendor's  protection,  as  suggested  above.  The  sale  is  not  thereby 
rescinded,  but  the  vendor  regains  his  lien  upon  the  goods  for  the  pur- 
chase price,  and  is  again  placed  in  the  same  position  as  if  he  had  never 
parted  with  possession.  Newhall  v.  Vargas,  13  Me.  93;  s.  c.,  29  Am. 
Dec.  489;  Patten's  Appeal,  45  Penn.  St  151. 

43.  A.  sells  goods  to  B.  and  receives  part  payment  at  once. 
IVhile  the  goods  are  in  transit,  B.  becomes  insolvent.     Has  A. 
ihe  right  to  stop  the  goods? 

Yes.     A  part  payment  of  the  purchase  price  does  not  deprive  the 
vendor  of  his  right  to  stop  the  goods.    He  still  has  the  right  to 
25 


386  QUESTIONS  AND  ANSWERS. 

protect  himself  as  to  the  balance  of  the  purchase  price.     Howatt  v. 
Davis,  5  Munf.  (Va.)  34;  s.  c.,  7  Am.  Dec.  681. 

So  also  the  right  exists,  though  the  vendor  has  received  con- 
ditional payment,  as  by  bills  of  exchange,  even  though  he  may 
have  negotiated  them  and  they  are  outstanding  umnatured. 
Benjamin  on  Sales  (6th  Am.  ed.),  §§  1138-1140. 

44.  A.  ships  goods- to  B.  at  Philadelphia.     After  the  goods- 
have  arrived  there,  A.  notifies  the  railroad  not  to  deliver  them  to 
B.     Would  the  carrier  be  liable  in  case  of  a  delivery  ? 

Yes.  The  goods  can  only  be  stopped  while  in  transit,  and  they 
are  held  to  be  in  transit  until  the  consignee. has  talc  en  possession  of 
them  by  some  positive  act,  or  so  long  as  the  carrier  still  holds  them. 
as  carrier.  Blackman  v.  Pierce,  23  Cal.  509;  Chandler  v.  Fulton, 
10  Tex.  2;  B.  c.,  60  Am.  Dec.  188.  The  right  to  stop,  does  cease, 
however,  where  the  carrier  "  by  agreement  between  himself  and  the 
consignee  undertakes  to  hold  the  goods  for  the  consignee,  not  as 
carrier,  but  as  his  agent,  and  the  same  principle  will  apply  to  a 
warehouseman  Or  wharfinger."  Ex  parte  Cooper,  L.  K.,  11  Cb... 
Div.  68,  a  A.;  Hall  v.  Diamond,  63  N.  H.  565. 

45.  "  First "  and  "  second "  bills  of  lading  are  issued  for 
certain  goods.     The  carrier  delivers  the  goods  upon  the  presenta- 
tion of  the  "  second  "  bill  of  lading,,  without  knowledge  that  the 
holder  is  not  entitled  to  them,  and  that  the  holder  of  the  "  first  " 
is  the  rightful  owner.     Is  the  carrier  guilty  of  conversion? 

No.  When  the  carrier  has  no  notice  of  another  indorsement  of 
a  bill  of  lading  he  is  protected  by  a  delivery  to  any  person  holding 
a  good  bill  of  lading,  whether  it  be  a  "  first "  or  "  second,"  and  is 
not  bound,  at  his  peril,  to  ask  for  the 'other  parts  of  the  bill.  Glyn 
Mills  v.  East.  &  West.  Ind.  Dock  Co.,  7  App.  Cas.  591;  Benjamin 
on  Sales  (6th  Am.  ed.),  §  1284. 

46.  A.  sells  goods  to  B.,  and  sends  him  a  bill  of  lading  en- 
titling him  to  the  delivery  of  the  goods.     B.  indorses  the  bill  to  C. 
for  value,  and,  later,  becomes  insolvent  before  the  goods  have  ar- 
rived.    Can  A.  exercise  the  right  of  stoppage  in  transitu? 

No.  In  case  of  the  purchase  of  the  goods  and  a  transfer  of  the 
bill  to  a  bona  fide  purchaser  for  value  during  the  transit,  the- 
right  to  stop  the  goods  is  defeated.  Lickbarrow  v.  Mason,  1  Smith's 
L.  C.  (8th  ed.,  1879),  753.  By  the  common  law,  as  fixed  by  that  lead- 
ing case,  the  indorsement,  if  made  by  a  factor  or  consignee,  was  only 
valid  in  case  of  a  sale,  and  the  right  to  stop  the  goods  was  not  de- 
feated in  case  of  a  pledge,  as  a  factor's  authority  was  held  not 
to  extend  a  right  to  pledge.  But  now,  by  the  Factors  Acts,  uni- 
formly in  force,  a  pledge  by  a  factor  is  binding  upon  the  consignor 
and  defeats  his  right  to  stop  the  goods,  at  least,  to  the  extent  of 


SALES.  387 

the  money  loaned;  and  by  the  Bills  of  Lading  Acts,  any  indorsee 
of  a  bill  of  lading  has  all  rights  of  action  upon  the  bill  in  his  own 
name.  1  Smith's  L.  C.  (8th  ed.  1879),  p.  823;  Daniel  on  Neg. 
Inst.  (4th  ed.),  §§  1730,  1751;  Benjamin  on  Sales  (6th  Am.  ed.), 
§  1285. 

To  cut  off  the  vendor's  right  of  stoppage  in  transitu,  however,  the 
transfer  of  the  bill' of  lading  must,  both  by  common  law  and  statute, 
be  to  a  bona  fide  third  person. 

The  fact  that  the  third  person  knows  that  the  vendee  has  not 
paid  for  the  goods  will  not  necessarily  deprive  him  of  the  rights  of  a 
bona  fide  transferee  of  the  bill  of  lading.  Curning  v.  Brown,  9  East,  506. 
But  he  must  act  without  knowledge  of  facts  which  would  make  the 
transfer  of  the  bill  of  lading  dishonest.  Rosenthal  v.  Dessau,  11  Hun 
(N.  Y.),  49.  Thus,  to  show  that  the  third  person  was  not  acting  in  good 
faith  it  may  be  shown  that  he  knew  of  the  insolvency  of  the  consignee. 
Loeb  v.  Teters,  63  Ala.  243;  s.  c.,  35  Am.  Rep.  17. 

In  some  jurisdictions,  it  is  held  that  a  pre-existing  debt  is  not  good 
consideration  for  the  transfer  of  a  bill  of  lading  so  as  to  cut  off  the 
vendor's  right  to  stop  the  goods.  Fee  v.  Kimball,  45  Me.  172;  Chandler 
v.  Fulton,  10  Tex.  2;  Lesassier  v.  Southwestern,  2  Woods  C.  C.  35.  See 
also  Loeb  v.  Peters,  63  Ala.  243. 

Of  course,  where  the  vendor  makes  the  goods  deliverable  to 
himself  by  the  bill  of  lading,  and  thus  retains  the  jus  disponendi 
of  the  goods,  he  is  always  protected  and  does  not  need  to  resort  to 
stoppage  in  transitu.  Ogg  v.  Shuter,  1  C.  P.  Div.  47.  See  Ques. 
10,  d,  supra. 

47.  A.,  as  vendor,  consigns  goods  to  B.,  and  sends  him  the 
lill  of  lading.  B.  indorses  the  bill  to  C.  to  secure  an  advance 
and  then  becomes  insolvent.  Can  A.  stop  the  goods  in  transitu? 

The  courts  give  relief  in  such  a  case  in  their  efforts  to  protect 
an  unpaid  vendor  where  they  can  do  so  without  prejudice"  to  a 
bona  fide  indorsee. 

\Vhere  the  goods  are  pledged,  the  legal  title  would  remain  in 
the  consignee  (pledgor),  and  the  stoppage  of  the  goods  would  be 
effectual  to  the  extent  of  entitling  the  vendor  to  the  goods  remain- 
ing afterthe  pledgee  had  been  satisfied  to  the  amountof  his  advance. 
But  the  courts  have  gone  still  farther  and  have  held  that  where 
the  transfer  of  the  bill  of  lading  is  absolute  in  form,  and 
the  consignee  has  no  legal  title  whatever  left  in  the  bill  of  lad- 
ing or  the  goods  which  it  represents,  still  in  equity  the  consignee 
retains  tfie  general  property,  and  the  right  of  stoppage 
remains  so  far  as  to  entitle  the  vendor  to  any  surplus  pro- 
ceeds after  the  indorsee  has  been  satisfied  for  his  advance, 
and  the  vendor  mav  even  insist  that  the  indorsee  shall,  if  possible, 
satisfy  bis  claim  out  of  other  security  before  resorting  to  the  goods. 


388  QUESTIONS  AND  ANSWEBS. 

In  re  Westzinthus,  5  B.  &  Ad.  817;  Spalding  v.  Eliding,  6  Beav. 
376.  See  also  Berndtson  v.  Strang,  L.  B.,  4  Eq.  486;  and  Kemp 
v.  Talk,  7  App.  Cas.  573. 

48.  A.  consigns  goods  to  B.,  who,  before  he  has  paid  for 
them,  sells  them  to  C.,  and  indorses  to  him  the  bill  of  lading.  B. 
then  becomes  insolvent  before  C.  has  paid  him  for  the  goods,  and 
A.  claims  the  right,  by  stopping  the  goods,  to  have  C.  pay  him 
the  money  which  he  owes  B.  Is  the  claim  a  good  one? 

No.  The  right  to  stop  in  transitu  terminates  as  soon  as  the  buyer 
has  parted  with  the  title  to  the  goods.  The  right  of  the  seller  is 
to  protect  himself  by  stopping  goods  belonging  at  law,  or  at  least 
in  equity,  to  the  buyer,  but  where  the  bill  of  lading  has  been  in- 
dorsed, and  transferred  to  a  bona  fide  sub-purchaser,  for  value,  the 
buyer  no  longer  has  any  interest  to  which  the  right  of  stoppage 
can  attach.  Benjamin  on  Sales  (6th  Am.  ed.),  §  1287. 

This  question  has  been  discussed  by  the  English  courts  in  Ex 
parte  Goiding  Davis,  13  Ch.  Div.  628,  and  Ex  parte  Falk,  14  id. 
446,  but  the  judges  were  widely  divided  in  their  opinions. 
The  former  case  is  probably  overruled  in  effect  by  the  latter,  in 
which  the  point  is  certainly  established  that  the  absolute  transfer 
of  the  bill  of  lading  is  necessary  to  terminate  the  right  of  stoppage. 
Ex  parte  Falk  went  to  the  House  of  Lords,  under  title  of  Kemp  v. 
"Falk,  L.  E.  7  App.  Cas.  573,  and  at  p.  582  of  that  case  Lord  Black- 
burn says: 

"  No  sale,  even  if  the  sale  had  actually  been  made  with  payment, 
would  put  an  end  to  the  right  of  stoppage  in  transitu,  unless  there 
were  an  indorsement  of  the  bill  of  lading.  Why  any  agreement  to 
sell,  unless  it  was  made  in  such  a  way  as  to  pass  the  right  of  prop- 
erty in  the  goods  sold,  should  be  supposed  to  put  an  end  to  the 
equitable  right  to  stop  them  in  transitu,  I  cannot  understand.  I 
am  quite  clear  that  it  does  not."  And  Lord  Selborne,  at  p.  577,  is 
equally  emphatic  that  the  right  to  stop  is  terminated  when  such,  a 
transfer  takes  place. 

XII.  STATUTE  OF  FRAUDS. 

a.     In  General. 

[By  the  common  law,  previous  to  1677,  it  lay  within  the  power  of  a 
jury  to  find  a  contract  for  the  sale  of  goods,  regardless  of  the  amount 
involved  or  the  manner  in  which  the  contract  was  proved.  The  juries 
had  enormous  power,  could  not  be  fined,  and  control  of  them  by  a 
new  trial  was  incomplete.  During  the  Commonwealth  many  reforms 
had  been  planned,  and  in  1677  one  of  these  was  embodied  in  the  statute 
of  29  Chas.  II,  chap.  3,  known  as  the  Statute  of  Frauds.  By  that  statute 
juries  were  prevented  from  finding  a  sale,  save  under  certain  circum- 
stances. In  bo  far  as  such  causes  operated  for  the  enactment  of  the 
statute,  they  are,  of  course,  now  nonexistent.  In  many  commercial  cen- 


SALES.  389 

ters  it  is  considered  disreputable  to  reply  upon  the  statute,  and  it  is,  on 
the  whole,  an  inconvenience.  Its  provisions  are  in  full  force,  however, 
in  England,  and  a  similar  statute  is  in  force  in  probably  every  State,  ex- 
cept Rhode  Island  and  Texas.*  1  Stimson  Am.  Stat.  Law,  §  4144,  stats, 
cited. 

It  is  probably  not  inaccurate  to  say  that  the  Statute  of  Frauds  of 
every  State  has  been  shaped  upon  the  model  of  the  original  statute. 
The  different  States  have  different  provisions  as  to  the  maximum 
amount  of  an  oral  contract  which  may  be  enforced,  and  in  the  different 
jurisdictions  various  rules  of  construction  obtain,  but  the  principle  of 
such  legislation  is  best  illustrated  by  a  study  of  the  original  statute.] 

49.  What  are  the  provisions  of  29  Chas.  II,  chap.  3,  as  to 

sales? 

Section  17  of  the  act  dealt  with  the  subject  of  sales.  It  enacted 
as  follows: 

"  And  be  it  enacted,  that  from  and  after  the  said  four-and- 
twentieth  day  of  June  (A.  D.  1677),  no  contract  for  the  sale  of 
any  goods,  wares  or  merchandise,  for  the  price  of  ten  pounds  ster- 
ling, or  upwards,  shall  be  allowed  to  be  good,  except  the  buye^hall 
accept  part  of  the  goods  so  sold,  and  actually  receive  the  same,  or 
give  something  in  earnest  to  bind  the  bargain,  or  in  part  payment, 
or  that  some  note  or  memorandum  in  writing  of  the  said  bargain 
be  made,  and  signed  by  the  parties  to  be  charged  by  such  contract, 
or  their  agents  thereunto  lawfully  authorized." 

50.  How  is  the  phrase  "  Contract    for  the  sale  of  any  goods/' 
etc.,  construed? 

The  English  courts  were  years  in  construing  the  above  phrase, 
and  only  in  comparatively  recent  times  has  the  construction  been 
finally  determined.  Up  to  1861  it  was  an  open  question  as  to  what 
contracts  were  for  "  work  and  labor,"  and  so  not  within  the  statute, 
and  what  contracts  were  for  the  sale  of  goods.  The  rule  was 
finally  settled  in  Lee  v.  Griffin,  30  L.  J.  Q.  B.  252;  s.  c.,  1  B.  &.  S. 
272.  "  That  action  was  brought  by  a  dentist  to  recover  £21  for  two 
sets  of  artificial  teeth,  made  for  a  deceased  woman  of  whom  the 
defendant  was  executor.  It  was  held  that  the  contract  was  for 
the  =ale  of  the  teeth.  Crompton,  J.,  expressed  the  rule,  as  follows: 

"When  the  contract  is  such  that  a  chattel  is  ultimately  to  be 
delivered  by  the  plaintiff  to  the  defendant,  when  it  has  been  sent, 
then  the  cause  of  action  is  goods  sold  and  delivered." 

Blackburn,  J.,  said:  "  If  the  contract  be  such  that  it  will  result 
in  the  sale  of  a  chattel,  the  proper  form  of  action,  if  the  employer 
refuses  to  accept  the  article,  when  made,  would  be  for  not  accepting. 
*  *  *  If  Benvenuto  Cellini  had  contracted  to  execute  a  work  of 

*  In  Texas,  where  the  oil  Spanish'  law  has  prevailed,  the  seventeenth  section i  of '  th* 
S-Htutc  of  Frauds  has  never  been  in  force.  See  Rev.  Stats.  Texas.  «.9,  tit.  4  ••  art  2464. 
1 1  Rhode  Island  that  section  has  not  been  in  force  since  1,51.  Hobart  v.  Littlefleld,  13 
R.I  341.  Q 


390  QUESTIONS  AND  ANSWERS. 

art  for  another,  much  as  the  value  of  the  skill  might  exceed  that 
of  the  materials,  the  contract  would  have  been,  nevertheless,  for  the 
sale  of  a  chattel!" 

This  construction  of  the  statute  seems  obvious  to-day,  and  is  most 
satisfactory. 

The  doctrine  of  Lee  v.  Griffin  has  been  followed  in  Con- 
necticut, Minnesota,  and  to  a  qualified  extent  in  New  Hamp- 
shire. Atwater  v.  Hough,  29  Conn.  508;  s.  c.,  79  Am.  Dec.  229; 
Brown  v.  Sanborn,  21  Minn.  402;  Prescott  v.  Locke,  51  N.  H.  94. 
In  the  last  case  they  hold,  that  if  the  services  of  a  particular  person 
are  required,  then  it  is  a  contract  for  work  and  labor. 

In  Finney  v.  Apgar,  31  N".  J.  Law,  266,  and  Goddard  v.  Binney, 
115  Mass.  450,  the  rule  of  Lee  v.  Griffin  has  been  rejected. 

The  fact  that  the  contract  is  executory  and  calls  for  future  de- 
livery of  the  goods  does  not,  in  most  jurisdictions,  take  it  out  of 
the  statute,  but  there  are  numerous  cases  holding  that  a  contract 
to  furnish  articles  to  be  manufactured,  or  prepared  in  a  prescribed 
manner,  is  not  affected  by  the  Statute  of  Frauds.  See  Benjamin  on 
Sales  (6th  Am.  ed.),  §  94,  and  cases  cited. 

In^ew  York  it  is  held,  that  an  agreement  of  sale  is  not  within 
the  statute,  unless  the  goods  are  ih  existence  at  the  time.  The  fact 
that  something  remains  to  be  done  does  not  prevent  the  transaction 
from  being  a  sale,  but  the  article  must  be  in  solid-o,  at  the  time 
of  the  contract.  ^Cooke  v.  Millard,  65  1ST.  Y.  352.  See  also  Matti- 
son  v.  Westcott,  13  Vt.  258,  accord;  Higgins  v.  Murray,  73  N.  Y. 
252. 

In  Massachusetts,  there  is  still  another  rule,  which  was  finally 
established  by  Lamb  v.  Crafts,  53  Mass.  356.  Shaw,  Ch.  J.,  said 
there : 

"  The  distinction,  we  believe,  is  now  well  understood.  When 
a  person  stipulates  for  the  future  sale  of  articles,  which  he  is  habit- 
ually making,  and  which  at  the  time  are  not  made  or  finished,  it 
is  essentially  a  contract  of  'sale,  and  not  a  contract  for  labor;  other- 
wise when  the  article  is  made  pursuant  to  the  agreement."  See 
also  Goddard  v.  Binney,  115  Mass.  450,  This  rule  is  the  one  most 
widely  adopted  in  the  United  States.  Hight  v.  Eipley,  19  Me. 
139;  Meincke  v.  Falk,  55  AVis.  427. 

b.     "  Goods,  Wares  and  Merchandise." 

51.  Are  shares  of  stock,  choses  in  action,  crops  and  growing 
trees  "goods,  wares  and  merchandise,"  within  the  provisions  of 
the  statute? 

Stocks.  There  is  force  in  the  argument  that  the  statute  should 
be  construed  as  applying  only  to  such  property  as  was  considered 
under  the  head  of  "  goods,  wares  and  merchandise  "  at  the  time  of 
its  enactment,  but  the  courts  have  generally  gone  upon  the  theory 
that  any  chattel  was  included  under  the  head  of  "  goods,  wares  and 


SALES.  391 

merchandise  "  and  have  extended  the  meaning  of  that  phrase  to 
-cover  certain  kinds  of  property  not  originally  specifically  intended, 
on  the  ground  that  contracts  for  the  sale  of  such  property  are 
clearly  within  the  spirit  of  the  statute.  Most  courts,  therefore, 
hold  stocks  to  be  within  the  provisions  of  the  statute.  Pray  v. 
Mitchell,  60  Me.  430;  Tisdale  v.  Harris,  20  Pick.  (Mass.)  9.  See 
also  Somerby  v.  Buntin,  118  Mass.  279;  Mayer  v.  Childs,  47  Cal. 
142.  There  is  some  conflict,  however,  on  the  point.  See  Board- 
man  v.  Cutter,  128  Mass.  388.  And  the  law  of  England  is  well 
settled,  contra.  Humble  v.  Mitchell,  11  Ad.  &  E.  205. 

On  the  same  principle  as  stocks;  accounts  (Walker  v.  Supple,  54 
•Oa.  178),  checks  (Beers  v.  Crowell,  Dudley  (Ga.),  28),  bank  bills 
(Gooch  v.  Holmes,  41  Me.  523,  528),  and  promissory  notes  (Pray  v. 
Mitchell,  60  Me.  430,  435),  are  held  to  be  included  in  "  goods, 
wares  and  merchandise."  But  the  words  of  the  statute  have  never 
been  extended  to  an  incorporeal  right  such  as  a  franchise.  Blake- 
ney  v.  Goode,  30  Ohio  St.  350. 

Choses  in  action.  These  are  generally  held  to  be  within  the 
statute.  Benjamin  on  Sales,  §  111,  note  1.  In  New  York  the 
statute  expressly  adds  "  things  in  action,"  to  the  phrase.  2  Rev. 
Stat.  136,  §  3.  So  also  California,  Minnesota  and  some  other  States. 

Crops.  In  the  consideration  of  contracts  for  the  sale  of  things 
growing  in  the  soil,  the  question  presents  itself,  whether  or  not  the 
contract  transfers  any  interest  in  real  estate.  If  it  does,  the 
seventeenth  section  of  the  act  does  not  apply,  but  the  fourth  sec- 
tion of  the  act  is  operative.  That  section  provides:  "  That  no 
action  shall  be  brought,  whereby  to  charge  any  person  *  *  * 
upon  any  contract  or  sale  of  lands,  tenements  or  hereditaments,  or 
any  interest  in  or  concerning  them;  or  upon  any  agreement  that 
is  not  to  be  performed  within  the  space  of  one  year  from  the 
making  thereof,  unless  the  agreement  upon  which  such  action 
shall  be  brought,  or  some  memorandum  or  note  thereof,  shall  be  in 
writing,  and  signed  by  the  party  to  be  charged  therewith,  or  some 
other  person  thereunto  lawfully  authorized." 

It  will  be  noticed  that  this  section  differs  from  the  seventeenth, 
in  that  a  written  memorandum  is  required  in  all  cases,  whereas 
under  the  seventeenth  section,  no  memorandum  is  required,  if  the 
value  is  under  £10,  or  if  there  has  been  a  part  acceptance  or  an 
earnest  has  been  given  to  bind  the  bargain.  A  case,  therefore, 
frequently  depends  entirely  upon  the  question,  whether  a  con- 
tract is  for  the  sale  of  "  goods,  wares  and  merchandise,"  or  an  "  in- 
terest in  or  concerning  land." 

In  the  sale  of  anything  that  is  attached  to  the  soil,  Blackburn 
makes  the  question  of  when  property  is  to  pass  the  test,  holding 
that  if  the  tiling  is  first  to  be  severed  from  the  soil,  and  then  sold, 
it  is  an  executory  contract  for  the  sale  of  goods,  not  then  existing 
ac  such.  But  if  the  property  is  to  pass  before  severance  from  the 
realty,  it  is  a  contract  of  .sale,  but  not  a  contract  for -the  sale  of 
goods.  Blackburn  on  Sales,  9,  10. 


392  .      QUESTIONS  AND  ANSWERS. 

This  test,  however,  though  accurate  on  principle,  has  been  ap- 
plied by  only  a  few  courts  in  this  country. 

In  questions  as  to  the  so-called  "  fructus  industrials  "  i.  e., 
all  crops  of  grain,  vegetables,  etc.,  the  annual  results  of  culti- 
vation of  the  soil,  it  is  almost  universally  held  that  these  are 
personal  property,  and  can  be  sold  as  such  before  maturity,  no 
matter  how  long  they  need  to  remain  in  the  earth  for  the  comple- 
tion of  growth.  Davis  v.  McFarlane,  37  Cal.  634;  Smith  v.  Bryan, 
5  Md.  141;  Benjamin  on  Sales  (6th  Am.  ed.),  117,  note  5,  cases 
cited. 

Trees.  In  questions  of  "  fructus  naturales"  there  is  considerable 
authority,  that  a  sale  of  them  in  their  growing  state  is  not  a  sale 
of  an  "  interest  in  land,"  unless  they  axe  to  continue  to  be  attached 
to  the  soil,  and  to  derive  benefit  from  it.  Marshall  v.  Green,  1 
C.  P.  Div.  35;  Cain  v.  McGuire,  13  B.  Hon.  (Ky.)  340.  The  juris- 
dictions in  accord  are  Connecticut,  Maryland,  Massachusetts.  8 
Am.  &  Eng.  Ency.  (1st  ed.)  p.  698,  note  4. 

In  other  States,  however,  it  is  held  that  all  sales  of  fructus 
naturales  are  within  the  fourth  section  of  the  statute,  a  broad  dis- 
tinction being  made  between  fructus  naturales  and  fructus  in- 
dustriales. The  States  holding  this  distinction  are  Tndiana,  Michi- 
gan, Missouri,  New  Hampshire,  New  Jersey,  New  York,  Pennsyl- 
vania, Vermont  and  Wisconsin.  8  Am.  &  Eng.  Ency.  (1st  ed.)  p. 
.700,  note  1. 

c.     "  Price  of  Ten  Pounds." 

52.  A.  agrees  to  take  all  of  the  produce  of  a  certain  piece  of 
land,  at  a  fixed  price  per  bushel.     The  number  of  bushels  is  un- 
known.    Would  the  contract  be  within  the  statute? 

If,  when  the  total  price  to  be  paid  became  fixed,  it  exceeded 
the  statutory  limit,  the  contract  would  be  within  the  statute.  The 
fact  that  the  parties  to  the  contract  cannot  know  whether  or  not 
the  price  will  exceed  the  limit  is  immaterial.  Brown  v.  Sanborn, 
21  Minn.  402. 

Where  different  articles  are  bought  at  the  same  time,  the  statute 
applies,  if  the  total  price  exceeds  the  statutory  limit,  provided  the 
whole  is  really  one  transaction.  Jenness  v.  Wendell,  51  N.  II.  63, 

d.     Acceptance  and  Actual  Receipt. 

53.  Is  acceptance,  under  the  statute,  an  act  preceding  or  fol- 
lowing the  receipt  of  the  goods  sold? 

A  buyer  may  accept  goods  sold,  so  as  to  bring  the  contract 
within  the  statute,  either  after  the  delivery,  at  the  time  of  it,  ,or 
before.  Cusack  v  Robinson,  1  B.  &  S.  "299;  Wilcox  Co.  v.  Green, 
72  E".  Y.  17.  But  there  must,  of  course,  be  a  complete  contract 
before  any  acceptance  is  possible.  Proctor  v.  Jones,  2  Car.  &  P. 
532. 


SALES.  393 

54.  What  constitutes  acceptance,  under  the  statute  ? 

In  England,  the  acceptance  under  the  statute  is  treated  as  the  mere 
identification  of  the  goods  which  are  the  subject  of  the  contract. 
Page  v.  Morgan,  15  Q.  B.  Div.  228.  But  the  weight  of  authority  in 
the  United  States  is  that  acceptance  under  the  statute  must  "  be 
by  some  unequivocal  act  done  on  the  part  of  the  buyer,  with  the 
intent  to  take  possession  of  the  goods  as  owner."  Eemick  *v.  Sand- 
ford,  120  Mass.  309. 

A  buyer  may,  however,  so  act  in  regard  to-  the  goods  as  to  be 
estopped  to  deny  his  acceptance  of  the  goods,  as  where  the  goods 
are  unreasonably  detained,  or  where  ownership  is  asserted  by  a  re- 
sale of  the  goods  or  some  similar  act.  Greene  v.  Merriam,  28  Vt. 
801.  Browne  on  Statute  of  Frauds,  §  316  g. 

55.  Will  an  acceptance  of  goods,  without  a  receipt  of  them,  be 
sufficient,  under  the  statute? 

No.  "  This  provision  is  not  complied  with  unless  the  two  things 
concur:  the  buyer  must  accept,  and  he  must  actually  receive  part  of 
the  goods;  and  the  contract  will  not  be  good  unless  he  does  both." 
Blackburn  on  Sales  (2d  ed.),  16;  Benjamin  on  Sales  (6th  Am.  ed.), 
§  139. 

56.  What  constitutes  "actual  receipt"  of  goods,  under  the 
statute? 

Before  there  can  be  an  actual  receipt  of  goods,  the  seller  must 
have  parted  with  his  lien,  and  the  buyer  must  be  possessed  of  them, 
so  as  to  cut  off  the  right  of  stoppage  in  transitu,  and  with  the  in- 
tention of  holding  them  adversely  to  the  seller.  Proctor  v.  Jones, 
2  Car.  &  P.  532;  Stone  v.  Browning,  68  N.  Y.  598;  Hinchman  v. 
Lincoln,  124  U.  S.  38.  Where  the  goods  are  bulky  or  for  any 
reason  are  not  capable  of  physical  delivery,  a  delivery  of  a  ware- 
house receipt  or  other  similar  document  to  the  buyer  will  not  be 
a  receipt  by  him,  within  the  statute,  until  the  warehouseman  or 
other  bailee  of  the  goods  has  attorned  to  the  buyer.  Williams  v. 
Evans,  39  Mo.  201;  King  v.  Jarman,  35  Ark.  190,  198;  s.  c.,  37 
Am.  Rep.  11. 

Of  course,  as  in  the  case  of  acceptance,  the  buyer  can  so  act  as 
to  be  estopped  to  deny  his  receipt  of  the  goods,  as  where  he  re- 
sells them.  Chaplin  v.  Rogers,  1  East,  192. 

e.     "  Earnest  "  and  "  Part  Payment." 

57.  How  do  earnest  and  part  payment  differ? 

Earnest  is  money  or  money's  worth  given  by  the  buyer  to  the 
seller,  to  be  forfeited  to  the  latter  if  the  buyer  does  not  carry  c 
his  bargain.     Artcher  v.  Zeb,  5  Hill  (S.  Y.).  200.     For  the  history 
of  Earnest,  see  Howe  v.  Smith,  27  Ch.  Div.  89. 


394  QUESTIONS  AND  ANSWERS. 

In  part  payment  there  must  be  an  actual  transfer  of  money  or 
money's  worth,  but  without  the  agreement  to  forfeit.  That  which 
is  given  in  earnest  may  be  accepted  in  the  end  as-  part  of  the  pay- 
ment, but  earnest  and  part  payment  are  not  the  same  thing.  "  That 
earnest  and  part  payment  are  two  distinct  things  is  apparent  from 
the  seventeenth  section  of  the  Statute  of  Frauds,  which  deals 
with  the,m  as  separate  acts,'  each  of  which  is  sufficient  to.  give 
validity  to  a  parol  contract."  Per  Fry,  J.,  in  Howe  v.  Smith,  27 
Ch.'Div.  102. 

f.     "  Note  or  Memorandum  in  Writing." 

58.  A.  sells  certain  goods  to  B.,  and  several  days  after  obtains 
from  B.  a  memorandum  of  the  transaction,  from  which,  however, 
one  of  the  essential  terms  of  the  sale  is  omitted.     Can  parol 
testimony  of  the  omitted  term  be  introduced  to  satisfy  the  require- 
ments of  the  statute?    Would  the  memorandum  satisfy  the  stat- 
ute, without  such  testimony? 

Parol  testimony  cannot  be  introduced  to  prove  any  term  which 
has  been  omitted  from  a  memorandum.  The  memorandum  itself 
must  contain  all  of  the  essential  terms  of  the  contract.  Fry  v. 
Platt,  32  Kan.  62;  Lee  v.  Hills,  66  Ind.  474.  Missouri,  however, 
allows  missing  terms  of  a  memorandum  to  be  supplied  by  parol 
testimony.  Lash  v.  Parlin,  78  Mo.  391;  Ellis  v.  Bray,  79  id.  227. 

The  memorandum  must  also  be  certain,  and  where  it  is  claimed 
to  contain  some  terms  which  were  not  adopted  in  the  contract, 
parol  evidence  as  to  which  terms  were  actually  adopted  is  inad- 
missible. Brodie  v.  St.  Paul,  1  Ves.  Jr.  326.  In  short,  the 
memorandum  to  satisfy  the  statute  must  be  complete. 

The  fact  that  the  memorandum  was  made  three  days  later  would 
not  affect  it,  however.  It  may  be  made  at  any  time  before  action 
is  brought.  Heidman  v.  Wolfstein,  12  Mo.  App.  366. 

% 

59.  What  are  the  terms  of  a  contract  of  sale,  which  must  ap- 
pear in  a  memorandum? 

The  memorandum  (1)  must  show  who  are  the  parties.  Grafton 
v.  Cummings,  99  IT.  S.  100.  (2)  Must  identify  the  goods  sold. 
Lente  v.  Clarke  (Fla.),  1  So.  Eep.  149.  (3)  Must  state  the  price 
to  be  paid,  if  any  has  been  agreed  upon.  Fulton  v.  Robinson,  55 
Tex.  401.  (4)  Must  state  the  conditions  of  the  contract,  if  any. 
McElroy  y.  Buck,  35  Mich.  434.  (5)  In  many  States  the  mem- 
orandum must  also  state  the  consideration  for  the  defendant's 
promise  to  sell.  The  cases  so  holding  have  been  based  upon  the 
principle  that  the  statute  required  the  memorandum  of  an 
agreement,  and  that  the  consideration  was  a  necessary  part  of  any 
binding  agreement.  This  rule  was  established  in  Wain  v.  "\Varlters, 
5  East,  10.  See  also  Browne  on  Statute  of  Frauds,  §  406.  The  States 
requiring  the  consideration  to  be  stated  are:  Alabama,  Colorado, 


SALES.  095 

Delaware,  Georgia,  Kansas  (semble),  Maryland,  Minnesota,  Mon- 
tana, New  Hampshire,  New  Jersey,  New  York,  Wisconsin.  The 
statutes  expressly  require  the  statement  of  the  consideration  in  Ala- 
bama, California,  Minnesota,  Nevada  and  Oregon. 

On  the  other  hand,  the  following  States  hold  that  the  considera- 
tion need  not  be  stated  in  the  memorandum:  Arkansas  (semble), 
Connecticut,  Florida,  Indiana,  Kentucky,  Louisiana,  Maine,  Massa- 
chusetts, Michigan,  Mississippi,  Missouri,  Nebraska  (semble),  North 
Carolina,  Ohio,  Tennessee,  Texas,  Vermont,  Virginia.  The  statutes 
provide  that  the  consideration  need  not  be  stated,  in  Illinois,  In- 
diana, Kentucky,  Maine,  Massachusetts,  Michigan,  Nebraska,  New 
Jersey  and  Virginia.  8  Am.  &  Eng.  Ency.  (1st  ed.)  727,  note  4. 

60.  Is  it  necessary  that  a  memorandum,  in  order  to  satisfy  the 
statute,  should  be  made  expressly  for  that  purpose? 

No.  Any  paper  which  contains  the  necessary  facts  satisfies  the 
requirements  of  the  statute.  Thus,  a  bill  of  parcels,  a  receipt  for 
money,  an  account  stated,  or  a  sheriff's  return  on  an  execution,  may 
be  a  sufficient  memorandum.  8  Am.  &  Eng.  Ency.,  p.  711. 

61.  A.,  in  order  to  satisfy  the  statute,  offers  at  the  trial  several 
letters  signed  by  B.f  which,  taken  together,  contain  all  of  the  terms 
of  the  contract?     Can  the  letters  be  construed  together  as  a  memo- 
randum? 

Yes.  A  memorandum  may  consist  of  any  number  of  papers, 
but  in  order  to  comply  with  the  terms  of  the  statute,  the  separate 
papers,  if  all  signed,  must  be  connected  physically,  or  by  reference 
or  internal  evidence,  so  that  no  parol  evidence  is  necessary  to  es- 
tablish their  connection  with  the  contract.  If  some  of  the  papers 
are  unsigned  they  may  still  be  used  to  make  up  the  memorandum, 
if  they  are  connected  (with  some  paper  which  is  signed)  in  the  way 
just  mentioned.  Studds  v.  "\Vatson,  28  Ch.  Div.  305.  See  Becfc- 
vith  v.  Talbot,  95  TJ.  S.  289;  Grafton  v.  Cummings,  99  id.  100. 

The  signature  to  the  memorandum  "need  not,  however,  be  very 
formal.  It  may  be  printed  or  stamped,  and  may  be  by  mark  or 
initials.  Drewrv  v.  Young,  58  Md.  546;  Hubert  v.  Moreau,  2  Car. 
&  P.  528;  Salmon,  etc.,  Co.  v.  Goddard,  14  How.  (U.  S.)  446.  . 

In  connection  with  the  signature  of  a  memorandum,  it  is  im- 
portant to  notice  that  the  statute  only  requires  that  it  should  be 
signed  by  the  "  parties  to  be  charged."  It  is  not  necessary  that 
there  should  be  a  memorandum  upon  which  both  parties  could  be 
held.  Marqueze  v.  Caldwell,  48  Miss.  23;  Alabama,  etc.,  Ins.  Co. 
T.  Oliver  (Ala.),  2  So.  Eep.  445.  Michigan,  however,  is  contra,  and 
Tequires  the  signature  of  both  parties.  Wilkinson  v.  Heavenrich, 
58  Mich.  574;  s.  c.,  55  Am.  Rep.  708. 


396  QUESTIONS  AND  ANSWEES. 

g.     "  Agents." 

62.  Can  a  memorandum  be  signed  by  a  third  person,  as  agent 
for  both  parties,  so  as  to  satisfy  the  contract? 

Yes.  Any  person  who  is  authorized  to  sign  by  both  parties  can 
execute  a  memorandum  binding  upon  both.  It  is  customary  in 
many  transactions  for  a  third  person  to  act.  Thus,  a  broker  is 
agent  for  both  parties,  if  his  position  is  known  to  both.  North  v. 
Mendel,  73  Ga.  400;  s.  c.,  54  Am.  Eep.  879.  So  also  an  auctioneer 
is  an  agent  for  both  parties  at  the  time  of  the  sale.  Springer  v. 
Kleinsorge,  83  Mo.  152.  But  after  the  sale  he  has  not  the  further 
authority  to  bind  the  buyer  by  signing  a  memorandum,  and  is- 
simply  the  agent  of  the  seller.  Meers  v.  Carr,  1  H.  &  N".  484.  And 
it  has  even  been  held  that,  when  acting  lor  the  seller,  a  subsequent 
memorandum  signed  by  the  auctioneer  is  insufficient.  Price  v. 
Durin,  56  Barb.  (N.  Y.)  647. 

•  .          h.    Effect  of  Statute. 

63.  What  is  the  effect  of  the  Statute  of  Frauds? 

The  question  of  the  effect  of  the  statute  upon  contracts  to  whicb 
it  applies  is  one  upon  which  courts  have  differed  widely.  The 
weight  of  authority,  however,  is  that  the  statute  simply  affects  the 
remedy,  preventing  (if  it  is  set  up)  the  enforcement  of  the  contract 
or  the  recovery  of  damages  for  its  breach,  but  not  rendering- 
the  contract  void.  It  is  held,  therefore,  that  only  parties  to  the 
contract  can  set  up  the  statute  as  a  defense.  Simmons  v.  More, 
100  N.  Y.  140;  .Wright  v.  Jones,  105  Ind.  17. 

XIII.  FRAUD. 

64.  A.  sells  goods  to  B.,  by  bill  of  sale,  but  retains  possession  of 
the  goods.     Execution  is  issued  upon  a  judgment  against  A.,  and 
these  goods  are  seized  under  it.     Can  B.  make  good  his  claim 
to  the  goods? 

The  question  is  decided  differently  in  different  jurisdictions.  In 
all  States  it  is  regarded  as  suspicious  when  a  vendor  keeps  posses- 
sion of  goods  capable  of  delivery,  that  fact  being  indicative  of  an 
attempt  to  defraud  creditors.  The  difference  in  the  rules  adopted 
By  the  several  States  rests  upon  the  varying  weight  which  is  given 
to  this  evidence  of  fraud. 

1.  In  some  States  it  is  held  that  the  possession  of  goods  after 
sale  is  a  conclusive  badge  of  fraud,  as  a  rule  of  law,  and  that  no 
evidence  of  good  faith  can  affect  this  conclusion.     The  States  so 
holding  are  Illinois,  Florida,  Iowa,  Kentucky,   California.   Con- 
necticut, Delaware.  Nevada.  Vermont,  Colorado. 

2.  A  second  view  is,  that  possession  of  the  goods  after  the  sale 
is  prima  facie  a  fraud  in  law,  and  if  unexplained  becomes  a  fraud, 
as  a  rule  of  law  for  the  court  to  lay  down  in  all  cases,  and  not  to- 
be  submitted  to  the  jury.     This  view  prevails  in  Indiana,  Missouri, 


SALES.  397 

Montana,  New  Hampshire,  Pennsylvania,  Wisconsin,  New  York, 
and  in  the  United  States  courts. 

3.  The  third  view,  which  is  most  generally  recognized  as  the 
sound  one,  is  that  where  the  possession  of  goods  does  not  accompany 
the  act  or  instrument  of  transfer,  the  possession  of  the  goods  by  the 
vendor  is  pritna  facie  evidence  of  fraud  for  the  jury,  sufficient  to 
warrant,  but  not  necessarily  sufficient  to  require,  the  finding  that 
the  sale  was  fraudulent;  that  the  question  of  fraud  is  always  for 
the  jury,  and  never  for  the  court.  The  courts  so  holding  are,  Ala- 
bama, Arkansas,  Georgia,  Maine,  Maryland,  Massachusetts,  Mich- 
igan, Minnesota,  Mississippi,  Nebraska,  North  Carolina,  Ohio,  Ore- 
gon, Rhode  Island,  South  Carolina,  Tennessee,  Texas,  Virginia, 
West  Virginia. 

For  an  exhaustive  collection  of  cases  on  the  whole  subject,  see 
Benjamin  on  Sales  (Bennett's  6th  ed.),  p.  458.  In  some  cases  a 
distinction  has  been  made  between  a  mortgage  and  an  absolute  sale, 
and  between  public  and  private  sales.  See  Benjamin  on  Sales 
{Bennett's  6th  ed.),  §  489,  with  cases  collected  for  all  jurisdictions. 

65.  A.,  by  making  fraudulent  misrepresentations  as  to  his 
financial  standing,  induces  B.  to  sell  him  some  goods.     A.f  at 
once,  resells  the  goods  to  a  bona  fide  purchaser  for  value.     Can 
B.  retake  the  goods  ? 

By  the  best  authority  he  cannot.  Title  would  pass  to  A. 
as  B.  intended  that  it  should,  and  A.'s  fraud  would  only  render 
the  title  voidable  as  between  the  parties.  A.  could,  therefore, 
transfer  title,  and  any  bona  fide  purchaser  for  value  would  take  title, 
free  from  the  taint  of  fraud.  Paige  v.  O'Neal,  12  Cal.  483;  Meara 
v.  Waples,  3  Houst.  (Del.)  581.  See  also  Ques.  40,  supra. 

66.  A.  orders  goods  by  mail  from  B.,  fraudulently  represent- 
ing himself  as  a  well-known  merchant.     He  receives  the  goods 
and  immediately  sells  them  to  a  bona  fide  purchaser  for  value. 
Who  has  title  to  the  goods? 

B.  never  parted  with  title  to  the  goods.  He  never  intended  to 
give  title  to  A.,  but  to  the  person  A.  represented  himself  to  be. 
A.  never  having  had  title,  could  transfer  none.  Cundy  v.  Ldndsey, 
3  App.  Cas.  459;  compare  Holmes,  Com.  Law,  312-313;  Alexander 
T.  Swackhamer,  105  Ind.  81. 

XIV.   FACTORS'  ACTS. 

The  New  York  act,  which  is  a  representative  statute,  provides: 
Section  1.  That  every  person  in  whose  name  any  merchandise 
shall  be  shipped,  shall '  be  deemed  the  true  owner,  so  far  as  to 
entitle  the  consignee  of  such  merchandise,  acting  in  good  faith, 
to  a  lien  thereon  (1)  for  any  money  advanced  or  negotiable  security 
given  by  such  consignee  for  the  use  of  the  person  in  whose  name 


398  QUESTIONS  AND  ANSWERS. 

the  shipment  is  made;  and  (2)  for  any  money  or  negotiable  paper 
received  by  'the  person  in  whose  name  such  shipment  shall  have 
been  made,  for  the  use  of  the  consignee. 

§  2.  The  consignee  so  advancing  money  must  not  have  notice 
by  the  bill  of  lading,  or  otherwise,  that  the  person  in  whose  'namer 
the  shipment  was  made  was  not  the  actual  and  bona  fide  owner 
thereof. 

§  3.  Every  factor  or  other  agent  intrusted  -with  the  possession  of 
any  bill  of  lading,  custom-house  permit,  or  zvarehouse-keeper's  receipt 
for  the  delivery  of  any  such  merchandise  (referring  to  section  1); 
and  every  such  factor  or  agent,  not  having  the  documentary  evi- 
dence of  title,  who  shall  be  intrusted  with  the  possession  of  any 
merchandise  for  the  purpose  of  sale,  or  as  security  for  any  advances 
to  be  made  or  obtained  thereon,  shall  be  deemed  to  be  the  true 
owner  thereof,  so  far  as  to  give  validity  to  any  contract  made  by 
such  agent  with  any  other  person,  for  the  sale  or  disposition  of  the 
whole  or  any  part  of  such  merchandise,  for  any  money  advanced,, 
etc.,  by  such  other  person  on  the  faith  thereof. 

§  4.  The  pledgee  of  goods,  as  security  for  an  antecedent  debt,, 
shall  not  acquire  any  greater  right  or  interest  in  the  goods  than, 
was  possessed  or  might  have  been  enforced  by  the  agent  at  the 
time  of  making  the  pledge. 

§  5.  Nothing  contained  in  the  last  two  preceding  sections  shall 
prevent  the  true  owner  of  merchandise,  so  deposited,  from  receiv- 
ing the  same,  upon  repayment  of  money  advanced,  and  satisfying 
euch  lien  as  exists  in  the  favor  of  the  agent  who  deposited  the 
same,  nor  from  recovering  any  balance  in  the  hands  of  the  pledgee,, 
resulting  from  the  sale  of  such  merchandise. 

§  6.  The  act  shall  not  authorize  a  common  carrier,  warehouse 
Keeper,  or. other  person  to  whom  property  may  be  committed 
for  transportation  or  storage  only,  to  sell  or  hypothecate  the  same. 
Lawe.K  Y.,  1830,  chap.  179;  Rev.  Stat.  (Banks*  9th  ed.)  page  2006. 
Similar  statutes  have  been  passed  in  many  States.  Pennsylvania^ 
Brightly's  Purd.  Dig.  (12th  ed.)  867;  Ohio,  Rev.  Stat.  1880r 
§  3216;  Massachusetts,  Pub.  Stat.  1882,  p.  417;  Rhode  Island,  Pub. 
Stat.  1882,  p.  332;  Maine,  Rev.  Stat.  1871,  p  326;  Maryland,  Rev. 
Code,  p.  291;  California,  Civ.  Code,  1897,  §§.2367-2369,  §  2991. 

The  agent  must  be  an  agent  in  a  mercantile  transaction;  a  clerk 
or  servant  is  not  such  an  agent.  Benjamin  on  Sales  (6th  Am.  ed.), 
§§  20-21,  and  cases  cited. 

67.  Has  an  agent.,  intrusted  with  goods  with  authority  to  sell, 
authority  to  receive  payment? 

Yes.  "  An  agent  authorized  to  sell  personal  property,  which  he 
has  in  his  possession,  and  can  deliver,  must,  in  the  absence  of  any 
known  limitation  upon  his  authority,  be  authorized  to  receive 
the  priVe."  but  he  has  no  authority  to  receive  -payment  before  it  is 
due.  Whiton  v.  Spring,  74  N.  Y.'  169,  at  173;  Seiple  v.  Irwin,  3O 
Penn.  St.  513. 


SALES.  399 

68.  A.,  a  cotton  broker,  obtains  possession  of  goods  by  fraud 
from  B.  and  sells  them  to  C.,  who  is  innocent  of  A.'s  defective 
title.     In  an  action  in  trover  by  B.  against  C.,  C.  relies  on  the 
Factors'  Act  to  perfect  his  title.     Judgment  for  whom,  and  why? 

Judgment  should  be  for  the  plaintiff.  A.  never  obtained  title 
and  the  goods  were  not  intrusted  to  him  as  agent  of  B.  The 
Factors'  Act,  therefore,  does  not  apply.  Hollins  v.  Fowler,  L.  R.  7 
H.  L.  757,  at  763;  First  Nat.  Bk.  of  Toledo  v.  Shaw,  61  N.  Y.  283, 
at  298. 

69.  What  is  the  effect  of  indorsing  a  warehouse  receipt? 

There  is  considerable  conflict  of  opinion.  In  a  few  States,  ware- 
house receipts  are,  by  statute,  made  negotiable  by  indorsement  — 
New  York,  Massachusetts,  Illinois,  Kentucky. 

In  California  the  same  effect  is  given  to  the  transfer  of  a  ware- 
houseman's receipt  as  is  given  to  the  transfer  of  a  bill  of  lading. 
Davis  v.  Russell.  52  Cal.  611.  See  Benjamin  on  Sales  (6th  Am. 
ed.),  §  1213. 


SURETYSHIP*. 


[NOTE. — To  assist  in  keeping  the  parties  clearly  in  mind,  in  forming 
the  questions  the  letter  C.  has  been  used  in  every  case  to  represent  the 
creditor,  P.  the  principal  debtor  and  S.  the  surety.] 

I.  NATURE  OF  CONTRACT. 
1.  What  elements  are  necessary  to  constitute  suretyship? 

(a)  There  must  be  three  parties, —  a  creditor,   or  obligee;  & 
principal  debtor,  or  obligor;  a  surety. 

(b)  There  must  be  two  obligations  running  to  the  creditor, — 
one  from  the  principal  debtor,  and  one  from  the  surety. 

(c)  As  betweeen  principal  debtor  and  surety,  the  former  must 
be  the  person  ultimately  liable. 

A  surety  is  "one  who  is  bound  with  and  for  another  who  is 
primarily  liable  and  who  is  called  the  principal."  Webster's  Diet. 

Suretyship  is  "  the  obligation  of  a  person  to  answer  for  the  debt, 
default,  or  miscarriage  of  another."  Bouvier's  Law  Diet.  • 

The  obligation  is  contractual  in  its  nature  and  it  usually  arises 
out  of  express  contract,  though  it  may  also  be  created  by  operation 
of  law,  as  in  Cutting  Packing  Co.  v.  Packers'  Exchange,  86  Cal. 
574  (where  the  assignment  of  a  non-negotiable  contract  was  con- 
sidered to  place  the  assignor  in  the  position  of  a  surety  to  the 
other  contracting  party  for  the  assignee),  or  by  estoppel,  as  in 
Lynch  v.  Smith,  25  Cal.  103  (where  one  whose  name  had.  without 
his  authority,  been  signed  as  surety  on  a  bond,  after  knowledge  of 
that  fact,  stood  by  and  allowed  the  obligee  to  act  to  his  prejudice 
on  faith  of  such  signature).  The  general  principles  of  contract 
are  applicable  to  its  creation.  The  promise  of  the  surety  may  be 
before,  after,  or  simultaneous  with  that  of  the  principal.  As  in 
any  other  contract  consideration  is,  of  course,  necessary. 

The  foregoing  -will  distinguish  suretyship  from: 

(1.)  Novation, — where  the  liability  of  the  original  debtor  is  extin- 
guished and  never  coexists  with  that  of  the  new  obligor.  In  novation 
there  are  never  two  simultaneous  obligations  running  to  the  obligee, 
for  "  if  debtor,  creditor,  and  a  third  party  agree  that  the  third  party 
shall  be  substituted  for  the  debtor,  the  debtor  is  exonerated."  Colt- 
man,  J.,  in  Bird  v.  Gammon,  3  Bing.  N.  C.  883. 

(2.)  Indemnity. —  where  the  contract  is  to  protect  the  indemnitee 
against  his  liability  to  another, —  not  to  guarantee  the  discharge  of  an- 
other's liability  to  him.  Indemnity  is  best  illustrated  by  the  common 

[400] 


SURETYSHIP.  401 

casualty  insurance,  where  an  employer  is  insured  against  liability  to 
bis  employees  for  personal  injury  or  where  a  shipowner  is  insured 
against  liability  for  collision,  etc. 

(3.)  Assignment  of  a  chose  in  action  where  the  assignor  guarantees 
payment.  Here  the  assignee  (creditor)  can  sue  only  in  the  name  of 
his  assignor  and  accordingly  has  no  direct  right  of  action  against  the 
debtor,  as  required  by  paragraph  (b)  supra.  In  States  where  the  as- 
signee of  a  chose  in  action  is,  by  statute,  given  the  right  to  sue  the 
obligor  in  his  own  name,  the  situation  approaches  very  near  to  surety- 
ship. Such  statutes,  however,  merely  alter  the  form  of  remedy,  and 
under  them,  as  at  common  law.  the  assignee  takes  subject  to  all  defenses 
good  against  his  assignor.  The  obligor  might,  therefore,  successfully 
defend,  leaving  the  assignor  still  liable  on  his  guaranty  of  the  debt. 
The  assignor's  obligation  in  such  cases  is,  therefore,  something  more 
than  that  of  a  mere  surety. 

(4.)  Transactions  where  B.  at  A.'s  request,  and  on  his  promise  to 
pay,  delivers  goods  to  or  confers  some  other  benefit  on  C.  Here  A.  is 
the  only  person  liable  and  clearly  no  suretyship  exists. 

See  Stillman  v.  Dresser,  22  R.  I.  389,  and  Watson  v.  Perrigo,  87  Me. 
202. 

2.  Distinguish   between  suretyship  proper  and  guaranty. 

The  word  suretyship  is  broadly  used  to  include  both  suretyship 
proper  or  strict  suretyship  and  guaranty.  The  distinction  is,  how- 
ever, often  important. 

In  both  suretyship  proper  and  guaranty,  two  persons  are  liable 
to  one  obligee  in  case  of  nonperformance  of  a  single  obligation 
for  which  performance,  as  between  themselves,  one  only  is  respon- 
sible. In  suretyship  they  are  equally  and  primarily  liable,  as 
against  the  obligee;  both  have  assumed  the  obligation  in  absolute 
terms,  and  either  or  both  may  be  sued  immediately  upon  default. 
In  guaranty,  on  the  other  hand,  the  obligation  of  the  guarantor  is 
avowedly  secondary  and  conditional  on  default  by  the  principal. 
The  obligee  may,  for  most  purposes,  treat  a  surety  as  a  principal 
debtor;  he  need  not  notify  him  of  the  principal's  default  nor  need 
he  seek  first  to  enforce  the  principal's  liability.  In  other  words, 
"the  surety  is  bound  with  his  principal  as  an  original  promisor," 
whereas  "the  contract  of  a  guarantor  is  his  own  separate  contract. 
It  is  in  the  nature  of  a  warranty  by  him  that  the  thing  guaranteed 
to  be  done  by  the  principal  debtor  shall  be  done,  not  merely  an 
engagement  jointly  with  the  principal  to  do  the  thing.  The  origi- 
nal contract  of  the  principal  is  not  his  contract  and  he  is  not 
bound  to  take  notice  of  its  nonperformance,  and  therefore  the 
creditor  should  give  him  notice. —  and  it  is  universally  held  that, 
if  the  guarantor  can  prove  that  he  has  suffered  damage  by  the 
failure  to  give  such  notice,  he  will  be  discharged  to  the  extent  of 
the  damage  thus  sustained.  It  is  not  so  with  a  surety."  Mc- 
26 


402  QUESTIONS  AND  ANSWERS. 

Millan  v.  Bull's  Head  Bank,  32  Ind.  11.  Perhaps  the  most  im- 
portant practical  difference  between  suretyship  and  guaranty  arises 
in  connection  with  the  Statute  of  Frauds,  infra,  pp.  404  et  seq. 

II.    NOTICE  OF  ACCEPTANCE  OF  THE  GUARANTY  AND  OF  DEFAULT 
BY  THE  PRINCIPAL. 

3.  8.  gave  P.  a  letter  promising  that  any  one  who  should  make 
advances  to  P.  for  the  carrying  on  of  P.'s  business  during  the  en- 
suing year,  might  look  to  S.  for  payment  if  P.  failed  to  pay.  C. 
made  such  advances  in  reliance  on  the  letter,  and,  on  P.'s  default y 
sued  S.,  who  pleaded  that  C.  had  never  given  him  notice  of  his  ac- 
ceptance of  the  guaranty.  Is  the  defense  valid? 

Yes.  According  to  the  weight  of  authority,  where  a  continuing- 
guaranty  or  general  letter  of  credit  is  given,  it  is  held  to  be  an 
offer  which  ripens  into  a  contract  only  when  acceptance  is  com- 
municated to  the  offerer.  See  Davis  v.  Wells,  Fargo  &  Co.,  104 
U.  S.  159.  "A  party  giving  a  letter  of  guaranty  has  a  right  to 
know  whether  it  is  accepted,  and  whether  the  person  to  whom  it  is- 
addressed  means  to  give  credit  on  the  footing  of  it  or  not.  It  may 
be  most  material,  not  only  as  to  his  responsibility,  but  as  to  future 
rights  and  proceedings.  It  may  regulate  in  great  measure  his 
course  of  conduct,  and  his  exercise  of  vigilance  in  regard  to  the 
party  in  whose  favor  it  is  given.  Especially  it  is  important  in  case 
of  a  continuing  guaranty,  since  it  may  guide  his  judgment  in  re- 
calling or  suspending  it."  Lee  v.  Dick,  10  Pet.  482 ;  De  Cremer  v. 
Anderson,  113  Mich.  578;  Bishop  v.  Eaton,  161  Mass.  496,  accord; 
cf.  Lennox  v.  Murphy,  171  Mass.  370. 

The  doctrine  set  forth  above  seems  open  to  theoretical  objection.  The 
principle  of  contracts  is  firmly  settled  that  an  offer  to  become  bound 
if  A.  performs  a  specified  act  (an  offer  for  a  unilateral  contract)  i» 
accepted  by  A.'s  performance  without  more,  and  that  no  notice  or  prom- 
ise need  be  given  by  A.  Thus  in  Lennox  v.  Murphy,  supra,  the  court 
said,  by  Holmes,  J. :  "  There  is  no  universal  doctrine  of  the  common 
law,  as  understood  in  this  commonwealth,  that  acceptance  of  an  offer 
must  be  communicated  in  order  to  make  a  valid  simple  contract."  See 
also  Langdell,  Summary  Contract,  §  2.  The  requirement  that  the  guar- 
antor .receive  notice  of  acceptance  is  the  outcome  rather  of  business 
convenience  than  of  strict  theory.  "  When  a  proposition  is  made  by 
a  man  for  a  thing  to  be  done  for  himself,  he  must  know,  when  done, 
that  it  is  done  on  his  proposition.  But  where  he  proposes  his  respon- 
sibility for  a  thing  to  be  done  for  another,  he  may  not  know  that  It 
is  done,  or,  even  if  he  does,  he  will  not  know  whether  it  was  done  on 
his  proposition,  or  on  the  sole  credit  of  the  third  person,  or  on  some 
other  security."  Collamer,  J.,  in  Oakes  v.  Weller,  13  Yt.  106.  Professor 
Langdell  says:  "  Sometimes  the  consideration  for  a  promise  is  of  such 
a  nature  that  the  promisor  will  have  no  sure  means  of  knowing  whether 


SURETYSHIP.  403 

or  not  it  has  been  performed,  unless  he  is  informed  by  the  promisee; 
and  this  will  frequently  be  a  sufficient  reason  for  holding  the  offer  to 
contain  an  implied  condition  that  notice  shall  be  given  of  the  perform- 
ance of  the  consideration  within  a  reasonable  time  after  it  is  performed. 
*  *  *  Thus,  if  A.  offers  to  B.  to  become  guarantor  for  C.  to  a  cer- 
tain amount,  if  B.  will  give  C.  credit  to  that  amount,  A.  will  become 
guarantor  as  soon  as  the  credit  is  given,  but  his  guaranty  may  rea- 
sonably be  held  to  be  conditional  upon  his  receiving  notice  within  a 
reasonable  time  afterwards  that  the  credit  has  been  given."  Summary 
Contract,  §  6 ;  and  see  to  same  effect,  Bishop  v.  Eaton,  161  Mass.  496. 

Where  the  guaranty  is  "  absolute," —  that  is,  where  the  circumstances 
do  not  imply  notice  of  acceptance  as  a  condition  of  liability, — such 
notice  is  not  required.  Bechtold  v.  Lyon,  130  Ind.  194;  Boyd  v.  Snyder, 
49  Md.  325.  The  line  which  marks  these  cases  has  never  been  satisfac- 
torily denned  and  the  doctrine  is  sometimes  applied  to  cases  indistin- 
guishable on  the  facts  from  those  in  which  such  notice  is  required,  as 
in  City  Bank  v.  Phelps,  86  N.  Y.  484. 

It  is  generally  held,  too,  that  the  guarantor  of  an  obligation  whose 
terms  are  specific  and  certain  is  not  entitled  to  notice  of  acceptance, 
the  circumstances  in  such  case  not  being  such  as  to  leave  the  guarantor 
in  doubt  as  to  the  existence  and  extent  of  his  liability.  "  The  distinc- 
tion is  between  an  offer  to  guarantee  a  debt  about  to  be  created,  the 
amount  of  which  the  party  making  the  offer  does  not  know  and  it  is 
uncertain  whether  the  offer  will  be  accepted  so  that  he  may  be  ulti- 
mately liable,  and  the  case  of  an  absolute  guaranty,  the  terms  of  which 
are  definite  as  to  its  extent  and  amount.  In  the  latter  case  no  notice 
is  necessary  to  the  guarantor,  whereas  in  the  former  case  the  contract 
is  not  completed  until  the  offer  is  accepted."  Allen  v.  Pike,  3  Cush. 
(Mass.)  238.  As  a  corollary  of  the  doctrine  that  a  guarantor  is  entitled 
to  notice  of  acceptance,  it  is  generally  held  that  in  case  of  a  general  or 
continuing  guaranty,  notice  of  acceptance  must  be  followed,  when  the 
transaction  is  ended,  by  notice  of  the  extent  of  the  advances  which 
have  been  made.  See  1  Brandt,  Suretyship  (3d  ed.),  §  211. 

4.  C.  made  advances  to  P.  in  reliance  on  S.'s  promise  that  he 
u-ould  pay  any  such  advances,  up  to  $6,000,  if  P.  did  not.  Due 
notice  of  acceptance  and  of  the  amount  of  the  advances  ivas  given 
to  S.  P.  made  default,  and  C.  brings  action  against  S*  without 
giving  him  notice  of  P.'s  default  and  without  any  proceedings 
against  P.  beyond  demand.  Can  C.  recover? 

Yes,  if  S.  has  not  been  damaged  by  C.'s  failure  to  give  notice. 
It  is  well  settled  by  the  great  weight  of  authority  that  in  cases  of 
guaranty,  where  the  guarantor's  liability  is  avowedly  secondary,  it 
is  the  duty  of  the  creditor  to  give  notice  of  the  principal's  default ; 
Globe  Bank  v.  Small,  25  Me.  366 :  McDougal  v.  Calef.  34  X.  H. 
534;  but  it  is  equally  settled  that  failure  to  do  so  is  not  a  defense 
unless  it  has  damaged  the  guarantor,  as  by  making  his  remedy 
against  the  principal  less  easy  or  by  postponing  adjustment  until 
the  principal  is  insolvent.  "  The  laches  of  the  plaintiff  and  thft 


404  QUESTIONS  AND  ANSWERS. 

loss  of  the  defendant  must  concur  to  constitute  a  defense."  Mat- 
thews, J.,  in  Davis  v.  Wells.  Fargo  &  Co.,  104  U.  S.  159 ;  see  Furst 
&  Bradley  Co.  v.  Black,  111  Ind.  308.  Xor  is  C.'s  failure  to  sue  P. 
a  defense  to  S.,  for  S.'s  promise  was  not  conditional  upon  anything 
except  P.'s  default.  C.'s  duty  was  to  make  such  demand  upon  P. 
as  to  put  him  in  default,  and  his  right  against  S.  thereupon 
accrued. 

In  cases  of  strict  suretyship,  as  distinguished  from  guaranty,  the 
surety  who,  on  the  face  of  the  instrument,  is  absolutely  liable,  is  not 
entitled  to  notice  of  the  principal's  default,  nor  to  await  the  issue  of 
proceedings  against  the  principal.  Where  true  guaranty  exists  the  guar- 
antor is,  as  already  stated,  entitled  to  such  notice.  This  rule  is.  how- 
ever, frequently  relaxed,  especially  in  cases  of  the  guaranty  of  nego- 
tiable paper.  Roberts  v.  Hawkins,  70  Mich.  566 ;  Lowe  v.  Beckwith, 
14  B.  Mon.  (Ky.)  184.  It  is  impossible  to  lay  down  a  rule  which  will 
reconcile  all  the  cases.  In  each  the  court  endeavors  to  ascertain  what 
the  parties  intended  and  to  act  accordingly.  "  The  rights  and  duties 
of  parties  to  guaranties  must  from  the  variety  of  circumstances  under 
which  they  have  been  entered  into  be  materially  governed  by  the  par- 
ticular circumstances  of  each  case."  Story,  J.,  in  Wildes  v.  Savage,  1 
Story,  22,  at  p.  35. 

Whether  the  guarantor  is  also  entitled  to  insist  that  the  creditor's 
legal  remedy  against  the  principal  be  exhausted  before  suit  is  brought 
against  him  must  depend  upon  the  precise  terms  of  the  obligation. 
Where  the  guaranty  is  of  the  "  payment  of  a  debt "  it  is  absolute  and 
the  guarantor  is  liable  at  once.  Jackson  v.  Decker,  14  N.  Y.  App.  Div. 
415,  at  p.  422;  Peterson  v.  Russell,  62  Minn.  220.  Where  it  is  a  guar- 
anty that  a  debt  will  be  "  collected  "  it  is  held  that  all  legal  remedies 
against  the  principal  must  be  exhausted  before  "  collection  "  has  failed, 
and  that  such  remedies  must  be  promptly  enforced.  Northern  Insur- 
ance Co.  v.  Wright,  76  N.  Y.  i45.  The  guarantor's  undertaking  in  such 
<?ase  is  "  that  the  claim  is  collectible  by  due  course  of  law."  Peckham, 
J.,  in  Salt  Springs  Nat.  Bank  v.  Sloan.  135  N.  Y.  371.  Such  proceed- 
ings need  not,  according  to  the  weight  of  authority,  be  had,  if  it  clearly 
appears  that  the  principal  is  insolvent ;  Brackett  v.  Rich,  23  Minn.  485 ; 
and  see  Allen  v.  Rundle,  50  Conn.  9 ;  but  in  some  States  even  this  relax- 
ation of  the  rule  is  not  admitted.  Craig  v.  Parkis,  40  N.  Y.  181;  Salt 
Springs  Nat.  Bank  v.  Sloan,  supra. 

III.  STATUTE  OF  FRAUDS. 

5.  What  effect  has  the  Statute  of  Frauds  on  contracts  of  surety- 
ship and  guaranty? 

The  statute  provides  that  "  no  action  shall  he  brought  whereby  to 
charge  the  defendant  upon  any  special  promise  to  answer  for  the 
debt,  default  or  miscarriage  of  another,  unless  the  agreement  upon 
which  such  action  shall  be  brought,  or  some  memorandum  or  note 


SURETYSHIP.  405 

thereof  shall  be  in  writing,  and  signed  by  the  party  to  be  charged 
therewith/'  etc. 

The  statute  has  no  application  to  cases  of  strict  suretyship.  It 
is  applicable  only  when  the  defendant's  promise  is  a  "secondary 
and  collateral  one, —  that  is,  in  cases  of  true  guaranty.  "*  *  * 
If  the  agreement  be  such  that  two  persons  *  *  *  do  at  the 
same  time  become  co-debtors  to  the  seller  for  the  price,  then 
*  *  *  the  case  is  not  within  the  Statute  of  Frauds.  *  *  * 
But  if  it  be  such  that  one,  at  the  time,  becomes  debtor  to  the  seller 
and  the  other  security  only  for  the  debt,  it  is  within  the  Statute 
of  Frauds.  *  *  *  The  class  of  special  promises  required  to  be 
in  writing  includes  only  such  as  are  secondary  and  collateral  to.  or 
in  aid  of  the  undertaking  or  liability  of  some  party  whose  obliga- 
tion, as  between  the  promisor  and  promisee,  is  original  or  primary.'* 
Gibbs  v.  Blanchard,  15  Mich.  292.  Thus  a  maker  of  a  note,  though 
he  sign  as  surety,  and  though  as  between  himself  and  other  makers 
he  is  in  fact  a  surety,  assumes  a  primary  obligation,  not  within 
the  statute,  and  this  even  though  he  add  the  word  "surety"  to 
his  signature.  Perkins  v.  Goodman,  21  Barb.  (X.  Y.)  218;  Casey 
v.  Brabason,  10  Abb.  Pr.  (X.  Y.)  368.  But  one  who  "guarantees" 
that  the  note  of  another  will  be  paid,  assumes  a  secondary  liability, 
collateral  to  that  of  the  maker,  and  his  undertaking  is  within  the 
statute.  Furbish  v.  Goodnow,  98  Mass.  296;  see  also  Halsted  v. 
Francis,  31  Mich.  113. 

By  some  courts  it  is  held  that,  under  the  statute,  the  writing 
must  express  the  consideration.  Deutsch  v.  Bond,  46  Md.  164; 
Drake  v.  Seaman,  97  X.  Y.  230;  see  also  Barney  v.  Forbes.  118 
X.  Y.  580.  Others  take  the  contrary  view.  Patmor  v.  Haggard,  78 
111.  607 ;  Sanders  v.  Barlow,  21  Fed.  Rep.  826.  In  some  jurisdic- 
tions the  form  of  the  statute  specifically  requires  it.  Moses  v.  Law- 
rence County  Bank,  149  TJ.  S.  298.  "  The  general  rule  deducible 
from  the  cases  seems  to  be  that  the  consideration  must  be  stated 
where  the  statute  expressly  so  requires,  or  where  the  agreement  is 
required  to  be  in  writing,  such  term  being  construed  generally  to 
include  the  consideration;  but  where  the  statute  merely  requires 
that  the  promise,  or  agreement,  be  in  writing,  the  consideration, 
which  is  no  part  of  the  promise,  need  not  be  expressed."  29  A.  & 
E.  Ency.  (2d  ed.)  870. 

6.  P.  bought  from  C.  a  jeweled  watch  on  credit  for  $500.  At 
the  time  of  the  sale,  S.  orally  promised  C.  that  if  he  would  give  P. 
the  credit  he  (S.)  would  pay  the  debt  if  P.  did  not.  X.,  on  the 
same  consideration  and  at  the  same  time,  promised  C.  that  if  P.  did 
not  pay  he  (X.)  would  do  so,  out  of  $1,000  belonging  to  P.,  de- 
posited with  him  as  security.  P.  made  default.  Are  S.  and  X. 
liable?  Would  they  be  if  P.  were  (a)  a  married  woman;  (b)  an 
infant? 


4C6  QUESTIONS  AND  ANSWERS. 

X.  is  liable  in  all  the  cases  supposed.  P.'s  obligation  was  an  abso- 
lute one  to  pay.  X.  s  was  merely  to  pay  from  a  particular  fund. 
X.'s  promise  therefore  was  not  an  unlimited  one  to  "  answer  the 
debt "  of  P.,  and  therefore  was  not  collateral  to  P.'s  promise.  To 
such  a  qualified  guaranty  the  Statute  of  Frauds  has  no  application. 
Lippincott  v.  Ashfield,  4  Sandf.  (N".  Y.)  611.  That'the  fund  from 
which  X.  was  to  pay  was  greater  than  the  amount  of  the  obligation 
is  not  material. 

In  the  first  case  supposed,  S.  is  not  liable.  His  promise  is  a 
simple  guaranty  and,  being  oral,  is  protected  by  the  statute. 

(a)  Had  P.  been  a  married  woman,  incapable  of  contracting, 
there  would  have  been  no  primary  obligation  to  which  the  promise 
of  S.  could  have  been  collateral.     "  Nor  can  a  man  guarantee  any- 
body else's  debt  unless  there  is  a  debt  of  some  other  person  to  be 
guaranteed.^    Lord  Selborne  in  Lakeman  v.  Mountstephen,  7  Eng. 
&  Ir.  App.  Cas.  17;  see  also  Kilbide  v.  Moss,  113  Cal.  432.     Ac- 
cordingly the  Statute  of  Frauds  would  have  no  application  and  S. 
would  be  liable.     See  Browne,  Stat,  of  Frauds  (oth  ed.),  §  156; 
Kimball  v.  Newell,  7  Hill  (N.  Y.),  116. 

(b)  If  A.  had  been  an  infant  his  obligation,  though  voidable, 
would  seem  on  principle  to  be  sufficient  to  support  a  collateral 
promise,  and  to  make  the  contract  of  S.  a  "  promise  to  answer  for 
the  debt  of  another  "  within  the  statute.     "  It  is  voidable  only  at 
the  option  of  the  infant,  and  until  so  avoided,  it  is  a  valid  debt.'*' 

Dexter  v.  Blanchard,  11  Allen  (Mass.),  365;  Browne,  Stat.  of 
Frauds  (5th  ed.),  §  156.  In  that  view,  which  is  supported  by  the 
apparent  weight  of  authority,  S.  would  not  be  liable.  Scott  v. 
Bryan,  73  N.  C.  582;  Brown  v.  Farmers'  Bank,  88  Tex.  265.  There 
is,  however,  important  authority  to  the  contrary.  Ghapin  v.  Lap- 
liam,  20  Pick.  (Mass.)  467;  King  v.  Summitt,  73  Ind.  312;  Harris 
T.  Huntbach,  1  Burrows,  373.  In  the  last  case,  Foster,  J.,  said: 
"  The  infant  was  not  liable,  and  therefore  it  would  not  be  a  col- 
lateral undertaking.  It  was  an  original  undertaking  of  the  defend- 
ant to  pay  the  money."  See  Brandt,  Suretyship  (3d  ed.),  §  69, 
This  reasoning  seems  bad  on  principle  since  the  infant's  contract  is 
not  void,  but  in  the  States  where  this  view  is  adopted  S.  would  be 
liable,  since  the"fetatute  would  afford  him  no  defense. 

7.  P.,  a  contractor,  erecting  a  'building  for  S.,  owed  $1,000  for 
steel  supplied  for  the  building,  and  C.  refused  to  supply  more  until 
the  debt  was  paid.  S.  orally  promised  C.  that  if  C.  would  deliver 
the  remainder  of  P.'s  order,  and  give  P.  the  assistance  necessary  to 
•finish  the  building  on  time  he  (S.)  would  pay  C.  for  all  the  steel 
en  completion  of  the  work  if  P.  did  not.  C.  did  so  and  then 
brought  action  against  S.  on  hi-s  promise.  Is  the  Statute  of  Frauds 
a  defense  to  S.? 

Xo.  The  statute  does  not  apply,  according  to  the  weight  of 
authority,  because  S.'s  promise  was  made  on  a  new  and  substantial 


SURETYSHIP.  407! 

consideration  moving  from  C.  and  to  obtain  for  himself  certain 
definite  results, —  the  delivery  of  the  steel  and  the  completion  of 
the  building  on  time.  It  would  be  against  conscience  to  allow  him, 
after  receiving  these  benefits  and  causing  C.  to  undergo  the  cor- 
responding detriment,  to  evade  his  own  obligation  under  the  techni- 
cal plea  of  the  Statute  of  Frauds.  "  Whenever  the  main  purpose 
and  object  of  the  promisor  is  not  to  answer  for  another,  but  to 
subserve  some  pecuniary  or  business  interest  of  his  own  involving 
either  a  benefit  to  himself  or  damage  to  the  other  contracting  party, 
his  promise  is  not  within  the  statute,  although  it  may  be  in  form 
a  promise  to  pay  the  debt  of  another."  Clifford,  J.,  in  Emerson 
v.  Slater,  22  How.  (TJ.  S.)  28;  see  also  Williams  v.  Leper,  3  Burr. 
72:  Leonard  v.  Yredenburgh,  8  Johns.  29. 

It  is  difficult  to  find  a  sound  legal  basis  upon  which  to  rest  the  doc- 
trine that  the  Statute  of  Frauds  does  not  apply  where  a  "  new  and 
original  consideration  "  is  present  as  between  creditor  and  guarantor. 
Of  course,  the  mere  fact  that  there  is  consideration  for  the  guaran- 
tor's promise  does  not  suffice  to  take  the  case  out  of  the  statute,  for  a 
guaranty,  like  any  other  contract,  cannot  exist  at  all  without  considera- 
tion. Moreover,  there  is  no  warrant  in  the  statute  for  making  the 
value  or  nature  of  the  consideration  the  test  of  the  statute's  applica- 
bility. The  doctrine  must  be  considered  as  a  piece  of  judicial  legislation 
and  as  a  manifestation  of  the  elastic  principle,  more  usually  enunci- 
ated by  courts  of  equity,  that  the  law  "will  not  permit  the  Statute  (of 
Frauds)  to  be  made  an  instrument  of  fraud."  Lord  Selborne,  in  Mad- 
dison  v.  Alderson,  L.  R.,  8  App.  Cas.  467.  "  He  does  not  undertake  as 
a  mere  surety  for  the  maker,  but  on  his  own  account,  and  for  a  con- 
sideration which  has  its  root  in  a  transaction  entirely  distinct  from  the 
liability  of  the  maker.  *  *  *  In  such  cases,  where  the  party  under- 
takes for  his  own  benefit,  and  upon  a  full  consideration  received  by 
himself,  the  promise  is  not  within  the  statute."  Brown  v.  Curtiss,  2 
N.  Y.  225.  The  substantial  transaction  intended  by  the  parties  in  such 
cases  is  not  suretyship  or  guaranty,  but  a  new  and  original  contract  for 
the  benefit  of  S. 

In  the  same  way  are  to  be  regarded  cases  where  a  person,  being 
under  a  liability  to  pay,  discharges  that  liability  in  some  way  involv- 
ing a  guaranty  of  another's  debt,  as  where  S.,  who  owes  P.  $100,  agrees 
to  pay  P.'s  debt  of  $100  to  C. ;  or  where  S.,  being  indebted  to  C.  in  the 
sum  of  $100,  discharges  his  liability  by  a  guaranty  of  P.'s  note  for 
$100,  held  by  C.  In  such  cases  S.  is  primarily  paying  his  own  debt 
not  P.'s,  and  the  Statute  of  Frauds  does  not  apply.  Dyer  v.  Gibson, 
16  Wis.  580;  see  Durham  v.  Manrow,  2  N.  Y.  533,  at  p.  538. 

In  this  connection,  too.  should  be  noted  the  case  of  del  credere  factors. 
The  principal  who  sells  through  such  a  factor  may  sue  him  for  the  price 
of  goods  sold  by  him  and.  according  to  the  great  weight  of  authority, 
he  may  also  recover  the  price  of  such  goods  in  a  direct  action  against 


408  QUESTIONS  AND  ANSWERS. 

the  purchaser.  The  situation  is  not  the  ordinary  one  of  guaranty,  for 
the  factor's  obligation  to  pay  the  principal  is  primary  and  absolute.  He 
has  also  the  added  right,  not  usually  accorded  a  guarantor  or  a  surety, 
of  suing  the  principal  debtor  (the  purchaser)  without  first  paying  him- 
self. His  promise,  accordingly,  is  not  within  the  Statute  of  Frauds. 
Swan  v.  Nesmith,  7  Pick.  (Mass.)  220;  Sherwood  v.  Stone,  14  N.  Y.  267;. 
2  Kent  Cornm.  625,  n. 

IV.  RIGHTS  OF  SURETY  IN  CONNECTION  WITH  AND  AFTER 

PAYMENT. 

8.  C.  held  three  $1,000  notes  of  P.  secured  by  mortgage.  S. 
and  X.,  in  the  order  named,  indorsed  the  first  note  for  P.'s  ac- 
commodation and  they  became  co-indorsers  of  the  second,  also  for 
P.'s  accommodation.  P.  made  default  on  all  notes,  u-hereupon  C. 
obtained  and  collected  judgment  aaainst  S.  ort  them.  What  are 
S.'s  rights? 

Against  P.  he  has  of  course  the  ordinary  action  of  indorser 
against  maker.  As  an  alternative  he  may  sue  P.  at  law  to  obtain 
indemnity  on  a  common  count  for  money  paid  to  his  use.  Mar- 
tin v.  Ellerbe's  Administrator,  70  Ala.  326.  In  equity  he  has 
eeveral  rights.  (1)  He  may  bring  action  against  P.  on  the  notes 
in  the  name  of  C.,  to  whose  rights  he  is  surrogated.  See  Miller  y. 
Stout,  5  Del.  Ch.  259.  (2)  He  may  sue  X.  on  the  second  note 
for  contribution  and  thus  compel  X.  to  share  the  loss,  infra,  p.  410. 
He  has  no  right  against  X.  on  the  first  note  for  the  reason  that  X., 
being  a  subsequent  indorser,  is  not  a  cosurety  with  him,  and  there- 
fore, as  between  them,  S.  is  the  one  liable  on  that  note.  See 
Brandt,  Suretyship  (3d  ed.),  §  286;  cf.  Eobertson  v.  Deatherage, 
82  111.  511.  (3)  After  C.  has  realized  in  full  on  all  three  notes,  but 
not  before,  S.  may  in  equity  reach  the  mortgage  and  apply  it  to  his 
relief.  Kortlander  v.  Elston,  52  Fed.  Eep.  100.  If  S.  and  X. 
had  each  paid  half  of  the  first  and  second  notes,  they  would  share 
the  mortgage,  X.  being  entitled  to  a  three-quarter  interest  in  it, 
by  virtue  of  the  fact  that  his  rights  are  prior  to  those  of  S.  on  the 
first  note  and  equal  on  the  second. 

1.  The  right  of  sureties  most  frequently  sued  on  is  that  of  subroga- 
tion. Upon  payment  the  surety  may  stand  in  the  shoes  of  the  creditor 
and  prosecute  the  original  obligation  in  the  creditor's  name  with  the 
same  force  and  effect,  and  subject  to  the  same  defenses,  as  though  the 
creditor  were  suing  in  his  own  right.  Brandt,  Suretyship  (3d  ed.), 
§  324  ct  seq.;  Swarts  v.  Siegel,  117  Fed.  Rep.  13.  This  right  only  accrues 
to  the  surety  when  the  creditor  has  been  paid  in  full,  Gannett  v. 
Blodgett,  39  N.  H.  150;  Musgrave  v.  Dickson,  172  Pa.  St.  629.  and 
extends  only  so  far  as  to  reimburse  the  surety.  Sheldon,  Subrog.  (2d 
ed.),  §  105.  In  practice  a  surety  frequently  takes  from  the  creditor  an 
assignment  of  his  claim  and  thereupon  sues  in  his  own  name.  This 


SURETYSHIP.  40<> 

la  not  necessary,  however,  as  payment  ipso  facto  works  an  equitable 
transfer  of  the  creditor's  right  to  the  surety  (Wilson  v.  Kiruball,  27 
N.  H.  300),  and  without  an  assignment  he  may  sue  in  the  creditor's 
name.  The  few  authorities  to  the  contrary  do  not  represent  the  gen- 
eral law.  The  creditor  stands  in  the  position  of  a  trustee  and  if,  on 
payment  by  the  surety,  he  releases  the  principal,  the  surety  may,  it 
would  seem,  in  equity  set  aside  the  release  and  sue  in  the  creditor's 
name  in  spite  of  it.  See  Smith  v.  Rumsey,  33  Mich.  183.  On  principle, 
and  according  to  the  weight  of  authority,  the  surety  in  the  case  of  a 
specialty  becomes  a  specialty  creditor  when  subrogated.  Stearns,  Surety- 
ship, §  266;  cf.  Smith  v.  Rumsey,  33  Mich.  183.  In  some  jurisdictions 
this  rule  is  established  by  statute.  19  &  20  Viet,  chap.  97,  §  5;  cf.  Ala. 
Code,  1896,  §  3888. 

Similarly,  a  surety  who  has  paid  the  debt  is  entitled  by  subrogation 
to  any  securities  held  by  the  creditor  for  the  performance  of  the  prin- 
cipal's obligation  and  to  any  judgment  on  such  obligation  recovered  by 
the  creditor  against  the  principal.  Lewis  v.  Palmer,  28  N.  Y.  271; 
Townsend  v.  Whitney,  75  N.  Y.  425. 

A  surety  upon  payment  is  also  subrogated  to  the  creditor's  rights 
and  securities  as  against  other  sureties.  He  may  thus  reimburse  him- 
self fully  from  any  other  sureties  who  are,  as  against  him,  primarily 
liable,  and  he  may  similarly  recover  pro  rata  from  cosureties.  Felton 
v.  Bissell,  25  Minn.  15,  see  Lidderdale  v.  Robinson,  12  Wheat.  (U.  S.) 
594:  Sheldon  (2d  ed.),  Subrog.,  §  140  ct  seq.  It  is  also  generally  held 
that  the  surety  of  a  surety  (i.  e.  a  person  who  has  agreed  with  a 
surety  to  save  him  harmless)  if  he  pays  the  debt,  is  entitled  to  subro- 
gation and  indemnity  against  the  principal  debtor.  McDaniels  v.  Flower 
Brook  Mfg.  Co.,  22  Vt.  274;  Hall  v.  Smith,  5  How.  (U.  S.)  96. 

It  has  already  been  noted  that  subrogation  presupposes  that  the 
creditor  has  been  fully  paid.  The  right  may  never  be  used  by  the 
surety  to  the  prejudice  of  the  creditor.  It  is  a  doctrine  of  equity, 
(Moore  v.  Watson,  20  R.  I.  495),  designed  to  work  justice  to  the  surety, 
but  not  to  enable  him  to  indemnify  himself  at  the  expense  of  the  cred- 
itor. Stearns,  Suretyship,  §  262;  Crump  v.  McMurty,  8  Mo.  408. 

2.  An  express  contract  of  indemnity  is.  in  practice,  frequently  made 
by  the  principal  to  the  surety.  In  the  absence  of  this,  however,  the 
fact  of  payment  by  the  surety  and  the  relation  of  the  parties,  as  already 
noted,  gives  rise  to  an  implied  contract  of  indemnity  upon  which  suit 
at  law  lies  as  an  alternative  to  the  enforcement  of  the  right  of  subro- 
gation. Such  a  suit  is,  of  course,  in  the  surety's  own  name.  The  right 
to  bring  it  arises  pro  tanto,  upon  payment  by  the  surety  of  any  part 
of  the  principal's  debt.  Bullock  v.  Campbell,  9  Gill  (Md.)  1S2:  Wilson 
v.  Crawford,  47  Iowa,  469.  The  Statute  of  Limitations  runs  from  the 
time  of  the  actual  payment  by  the  surety.  Thayer  v.  Daniels,  110 
Mass.  345.  Recovery  is  limited  to  the  amount  actually  paid  by  the 
surety.  Brandt,  Suretyship  (3d  ed.),  §  233;  Coggeshall  v.  Ruggles,  62 
111.  401.  The  surety  of  a  surety  may,  according  to  the  weight  of  au- 


410  QUESTIONS  AXD  AXSWEBS. 

thority.  maintain  a  direct  action  for  indemnity  against  the  principal. 
See  Hall  v.  Smith,  5  How.  (U.  S.)  96.  The  right  of  indemnity  requires 
that  the  surety  became  so  at  the  request  of  the  principal  debtor, 
express  or  implied.  Osboru  v.  Cunningham,  4  Dev.  &  Bat.  (X  C.)  423. 

A  surety  who  has  paid  may  also  obtain  indemnity  by  the  cancella- 
tion or  set-off  pro  tan  to  of  a  debt  owed  by  him  to  the  principal  debtor. 
Merwin  v.  Austin,  58  Conn.  22.  His  right  does  not,  however,  extend 
beyond  his  proportionate  share  of  the  original  debt.  Cosgrove  v.  Mc- 
Kasy,  65  Minn.  426. 

3.  As  between  cosureties  there  is  a  similar  implied  contract  of  con- 
tribution, whereby  they  are  to  bear  the  loss  equally,  unless  some  other 
division  is  expressly  agreed  on.  Like  indemnity,  contribution  is  of 
equitable  origin,  but  may  now  be  enforced  by  action  at  law  (see  Lans- 
dale  v.  Cox,  7  T.  B.  Mon.  (Ky.)  401),  in  the  surety's  name.  or.  as  al- 
ready noted,  by  means  of  the  equitable  right  of  subrogation  in  the  credi- 
tor's name.  The  principle  of  contribution  was  stated  by  Alderson.  B., 
in  Pendlebury  v.  Walker,  4  Y.  &  C.  Ex..  at  p.  441,  as  follows :  "  Where 
the  same  default  of  the  principal  renders  all  the  cosureties  responsi- 
blej  all  are  to  contribute;  and  then  the  law  superadds  that  which  is 
not  only  the  principle  but  the  equitable  mode  of  applying  the  prin- 
ciple, that  they  should  all  contribute  equally,  if  each  is  a  surety  to  an 
equal  amount ;  and  if  not  equally,  then  proportionably  to  the  amount 
for  which  each  is  a  surety."  In  Craythorne  v.  Swinburne,  9  Rev.  Rep. 
264  (another  report  in  14  Yes.  160),  Lord  Eldon  said:  "In  the  case  of 
Deering  v.  Earl  of  Winchelsea,  *  *  *  it  is  decided  that,  whether 
they  are  bound  by  several  instruments  or  not,  whether  the  fact  is  or 
is  not  known,  whether  the  number  is  more  or  less,  the  principle  of 
equity  operates  in  both  cases ;  upon  the  maxim  that  equality  is  equity ; 
the  creditor,  who  can  call  upon  all,  shall  not  be  at  liberty  to  fix  one 
with  payment  of  the  whole  debt :  and  upon  the  principle,  requiring 
him  to  do  justice,  if  he  will  not,  the  court  will  do  it  for  him." 

There  is  some  authority,  which  does  not,  however,  represent  the  gen- 
eral law,  to  the  effect  that  in  equity  the  right  of  a  surety  to  contribu- 
tion from  a  cosurety  exists  only  where  the  principal  is  insolvent.  See 
1  Brandt,  Suretyship  (3d  ed.),  §  316. 

9.  S.  executed  a  bond  making  him  surety  for  P.'s  debt  of  $10,000 
to  C.  Subsequently  X.  executed  a  second  bond  whereby  he  be- 
came P.'s  surety  for  the  same  debt,  and  he  received  from  P.  for 
his  security  a  mortgage  on  land  worth  $5,000.  When  the  debt 
fell  due,  S.  and  X.  each  paid  C.  $5,000  in  discharge  of  it,  and 
thereafter  P.  paid  X.  $2,500  by  way  of  partial  reimbursement. 
What  rights  has  S.  against  X.? 

It  is  well  settled  that  sureties  for  the  same  debt,  who  become  so 
before  suit  brought,  are  cosureties,  even  though  they  assume  their 
obligations  at  different  times,  by  different  instruments,  and  for 
different  considerations,  and  even  though  each  is  ignorant  of  the 


SURETYSHIP.  -ill 

other.  See  Sohram  v.  Werner,  85  Hun  (X.  Y.),  293;  Golson  v. 
Brand,  75  111.  148.  The  rule  is  different  as  between  the  surety  fora 
debt  and  one  who,  in  the  course  of  legal  proceedings  to  recover  the 
debt  from  the  principal,  becomes  surety  for  the  principal  debtor  on 
an  appeal  bond,  etc.  In  such  a  case  the  obligations  of  the  two  sure- 
ties are  essentially  different  in  tenor ;  they  are  not  cosureties  and  no 
right  of  contribution  exists  between  them.  Dunlap  v.  Foster,  7 
Ala.  734;  Friberg  v.  Donovan,  23  111.  App.  58;  and  see  Cowan  v. 
Duncan,  Meiggs  (Tenn.),  470.  In  the  case  supposed,  however,  S. 
and  X.  are  cosureties.  A  surety  is  entitled,  by  virtue  of  his  right 
of  contribution,  to  share  pro  rata  in  security  given  by  the  principal 
to  a  cosurety  prior  to  the  discharge  of  the  debt;  and  this,  accord- 
ing to  the  weight  of  authority,  even  though  the  security  was  ex- 
pressed to  be  solely  for  the  benefit  of  the  surety  receiving  it. 
Steel  v.  Dixon,  17  Ch.  Div.  825;  Stearns,  Suretyship,  §  279  et  seq., 
%  291 ;  Commissioners  of  McDowell  Co.  v.  Nichols,  131  N".  C.  501, 
contra.  In  Steel  v.  Dixon,  Fry,  J.,  said :  "  *  *  *  As  between  co- 
sureties there  is  to  be  equality  of  the  burden  and  of  the  benefit  *  *  *. 
Each  surety  must  bring  into  hotchpot  every  benefit  which  he  has 
received  in  respect  of  the  suretyship  which  he  undertook,  and  if 
he  has  received  a  benefit  by  way  of  indemnity  from  the  principal 
debtor,  it  appears  to  me  that  he  i  bound,  as  between  himself  and 
his  cosureties,  to  bring  that  into  hotchpot,  in  order  that  it  may  be 
ascertained  what  is  the  ultimate  burden  which  the  cosureties  have 
to  bear,  so  that  the  ultimate  burden  may  be  distributed  between 
them  equally  or  proportionably  as  the  case  may  require."  It  fol- 
lows that  S.  is  entitled  to  share  equally  with  X.  in  the  benefit  of 
the  mortgage. 

X.  is,  however,  entitled  to  keep  the  $2,500  free  of  any  claim  by 
S.  When  the  creditor  has  been  paid  by  the  cosureties  ratably,  the 
rights  of  contribution  as  between  themselves  become  fixed  as  of 
that  time  and  "  each  becomes  an  independent  creditor  of  the  prin- 
cipal for  the  amount  paid  by  him  "  (1  Brandt,  Suretyship  (3d  ed.), 
§  299),  and  is  entitled  to  keep  for  his  own  use  any  reimbursement 
which  his  diligence  may  thereafter  obtain  from  the  principal. 
Harrison  v.  Phillips,  46  Mo.  520;  see  also  Messer  v.  Swan,  4  N". 
H.  481.  It  is  somewhat  difficult  to  assign  a  valid  theoretical  rea- 
son for  this  difference  in  the  rights  of  contribution  before  and 
after  payment  of  the  creditor.  The  distinction  must,  seemingly, 
rest  on  the  practical  ground  that  it  is  advantageous  to  fix  the 
rights  of  the  parties  as  soon  as  possible  and  end  the  constant  aris- 
ing of  new  equities  to  be  adjusted.  See  16  Harv.  L.  Rev.  439. 

10.  8.  was  surety  for  P.  on  a  bind  to  C.  for  $5.000.  C.  was  in- 
debted to  P.  in  the  sum  of  $2,000,  and  S.  was  indebted  to  P.  in  the 
sum  of  $1,000.  C.  sues  S.  on  the  bond.  What  are  the  rights  of  S.  ? 

(1)  He  may  file  a  bill  in  equity  to  compel  P.  to  pay  the  bond 
and,  pending  such  payment,  may  perhaps  temporarily  enjoin  the 


412  QUESTIONS  AND  ANSAVEBS. 

prosecution  of  C.'s  action.  See  note  infra.  (2)  He  may  retain  the 
$1,000  which  he  owes  P.  as  security  for  the  performance  of  P.'s 
duty  to  free  him  from  liability  to  C.,  or  it  would  seem  that  he  may, 
if  he  prefers,  pay  it  to  C.  Scott  v.  Timberlake,  83  X.  C.  382 ;  Me- 
Knight  v.  Bradley,  10  Eich.  Eq.  (S.  C.)  557;  and  see  Richardson 
v.  Merritt,  74  Minn.  354. 

He  may  not  at  law  use  C.'s  debt  to  P.  as  a  set-off,  according  to 
the  weight  of  authority,  especially  where  P.  is  not  before  the  court, 
because  that  right  is  one  belonging  to  P.,  not  to  S.,  and  it  lies  in 
P.'s  "  election  to  determine  whether  it  shall  be  used  defensively,  or 
whether  he  will  bring  his  own  action  for  the  damages,  or  whether 
he  will  forego  his  claim  altogether.  The  defendants  (sureties) 
have  no  control  over  him  in  this  respect  and  cannot  borrow  and 
avail  themselves  of  his  rights."  Lasher  v.  Williamson,  55  X.  Y. 
619.  If  both  principal  and  surety  are  in  court  and  plead  the 
set-off  it  will  be  allowed  (Mahurin  v.  Pearson,  8  X.  H.  539),  and 
it  is  generally  held  that  the  surety  may  in  equity  bring  in  all  the 
parties  and  thereupon  avail  himself  of  a  set-off  in  favor  of  his 
principal.  Stearns,  Suretyship,  §  117;  see  also  Bechervaise  v. 
Lewis,  L.  E.,  7  C.  P.  372. 

Where  the  creditor  is  insolvent,  it  has  been  held  that  a  surety 
may  in  equity  obtain  the  right  to  use  his  principal's  claim  against 
the  creditor  as  a  set-off,  even  though  the  principal  be  not  before 
the  court.  Edmunds'  Assignee  v.  Harper,  31  Gratt.  (Va.)  637, 
under  Virginia  statute;  see  Coffin  v.  McLean,  80  X.  Y.  560.  And 
the  same  has  been  held  where  the  principal  is  insolvent.  Jarrett  v. 
Martin,  70  X.  C.  459. 

In  addition  to  the  rights  of  subrogation,  indemnity,  and  contribution 
already  referred  to,  a  surety  may,  in  a  proper  case,  compel  his  prin- 
cipal to  pay  the  debt  before  the  creditor  collects  from  the  surety,  and 
thus  obtain  exoneration.  "  Sureties  also  are  entitled  to  come  into  a 
court  of  equity  after  a  debt  has  become  due,  to  compel  the  debtor 
to  exonerate  them  from  their  liability  by  paying  the  debt."  Story,  Eq. 
Jur.,  §  327;  and  see  Bechervaise  v.  Lewis.  L.  R.,  7  C.  P.  372.  This* 
right  exists  only  in  equity  and  does  not  arise  until  the  principal  debt- 
or's obligation  has  matured.  American  Bonding  Co.  v.  Logansport  &c. 
Gas  Co.,  95  Fed.  Rep.  49.  The  right  is  enforced  by  a  bill  qtiia  timet 
and  is  in  the  nature  of  specific  performance  of  a  contract  to  save  the 
surety  harmless.  Frequently  an  express  contract  of  exoneration  la 
given  by  the  principal  debtor,  and  in  such  cases  equity  will  specifically 
enforce  it.  Ranelaugh  v.  Hayes,  1  Vern.  189.  Whether  the  courts 
will,  in  aid  of  the  surety's  exoneration,  temporarily  enjoin  the  cred- 
itor from  prosecuting  suit  against  the  surety,  pending  proper  steps  to 
compel  the  principal  to  give  exoneration  is  not  definitely  settled.  Such 
an  injunction  has  been  denied  in  the  Federal  courts,  on  the  ground  that 
it  would  be  an  obstruction  of  the  creditor's  right  to  enforce  the  surety's 
liability.  American  Surety  Co.  v.  Lawrenceville  Cement  Co..  96  Fed. 
Rep.  25,  at  p.  30.  A  contrary  view  seems  to  be  hinted  by  the  court  in 
Wolmershausen  v.  Gullick,  L.  R.  1893,  2  Chan.  514. 


SURETYSHIP.  413 

V.  DISCHARGE  OF  SURETY. 
1.     Use  of  Principal's  Defenses. 

11.  P.  purchased  a  horse  from  C.,  who  warranted  it  to  be  sound. 
P.  promised  to  obtain  and  deliver  to  C.  certain  chattels  in  pay- 
ment, and  S.  at  the  same  time  agreed  with  C.  that  if  P.  did  not 
perform  his  agreement,  he  (S.)  would  perform  it.  P.,  having 
made  default,  C.  sues  S.,  who  pleads  (1)  that  the  warranty  as  to 
the  horse  was  broken,  and  (2)  that  P.  was  insane  at  the  time  of 
the  contract.  Demurrer  to  each  plea.  What  judgment? 

Judgment  for  S.  on  the  first  plea,  and  for  C.  on  the  second. 
Either  of  these  pleas  would  be  a  defense  to  P.,  the  principal.  It 
is  frequently  stated  that  whatever  is  a  defense  to  the  principal  is 
also  a  defense  to  the  surety.  See  Ames  v.  Maclay,  14  Iowa,  281. 
But  this  is  far  from  universally  true.  "  The  surety  is  not  entitled 
to  every  exception  which  the  principal  debtor  may  urge.  He  has  a 
right  to  oppose  all  which  are  inherent  to  the  debt,  not  those  which 
are  personal  to  the  debtor."  Porter,  J.,  in  Baldwin  v.  Gordon,  12 
Martin  (La.),  378.  The  rule  may  be  stated  with  substantial  ac- 
curacy by  saying  that  defenses  available  to  the  principal  debtor 
which  arise  from  the  act  or  default  of  the  creditor,  are  also  de- 
fenses to  a  surety  who  was  known  to  the  creditor  as  such.  Thus 
if  the  contract  between  principal  and  creditor  is  illegal,  that  fact 
is  a  defense  to  the  surety.  Mound  v.  Barker,  71  Yt.  253.  So  if 
the  principal's  obligation  was  created  by  the  fraud  or  duress  of  the 
creditor,  the  surety  may  defend  on  that  ground  (Putnam  v. 
Schuyler,  4  Hun  (N.Y.),  166;  Osborn  v.  Bobbins,  36  N.  Y.  365; 
but  cf.  Hazard  v.  Griswold,  21  Fed.  Bep.  178),  and  so  if  the 
creditor  release  tl  e  principal,  p.  414  infra.  Similarly  in  the  case 
supposed,  the  defense  of  failure  of  consideration  due  to  C.'s  default 
is  available  to  S.  Sawyer  v.  Chambers,  43  Barb.  (N.  Y.)  622; 
Scrogffin  v.  Holland,  16  Mo.  419 ;  Gunnis  v.  "VYeigley,  114  Pa.  St. 
191;  Cooper  v.  Joel,  1  DeGex.  Fich.  &  Jo.  240;  Ohio  Thresher  & 
Engine  Co.  v.  Hensel,  9  Ind.  App.  328. 

But  where  the  principal  has  a  defense  not  arising  from  any  act 
or  omission  of  the  creditor,  it  will  not  avail  the  surety.  Thus  the 
infancy  or  coverture  of  the  principal  cannot  be  set  up  by  the 
surety'  (Kims'  Executor  v.  Young,  34  Pa.  St.  60;  TVinn  v.  San- 
ford,  145  Mass.  302),  except  where  the  infant  has  disaffirmed  the 
contract  and  returned  the  consideration,  as  in  Baker  v.  Kenneth, 
54  Mo.  82 ;  nor  is  the  insanity  of  the  principal  at  the  time  of  con- 
tracting a  defense  to  the  surety.  Lee  v.  Yandell,  69  Tex.  34. 
Similarly  the  surety  on  a  corporation's  contract  may  not  plead  that 
the  contract  was  ultra  vires  of  the  corporation.  Yorkshire  Railway 
Wagon  Co.  v.  Maclure,  L.  B.,  19  Ch.  Div.  478 :  Weare  v.  Sawyer, 
44  X.  H.  198. 

In  cases  where  the  principal  contract  is  usurious,  that  fact  is  a. 


414  QUESTIONS  AND  ANSWERS. 

defense  to  the  surety  if  the  law  makes  usurious  contracts  void. 
Prather  v.  Smith,  101  Ga.  283;  Harrington  v.  Findlay,  89  Ga. 
385.  Such  cases  are  merely  one  species  of  the  illegal  contracts, 
noted  above.  Even  where  usury  is  a  defense  personal  to  the 
obligor,  and  to  be  used  only  at  his  option,  it  Avould  seem  that  his- 
surety  may  plead  it.  See  Chapuis  v.  Mashot,  91  Hun  (X.  Y.), 
565. 

In  this  connection  may  be  noted  that  if  a  principal  debtor  success- 
fully defends,  on  the  merits,  a  suit  by  the  creditor  on  the  obligation, 
equity  will  enjoin  the  enforcement  by  the  creditor  of  a  judgment  recov- 
ered against  the  surety  on  the  same  obligation.  Ames  v.  Maclay,  14 
Iowa,  281. 

12.  P.  was  indebted  to  C.  by  simple  contract  in  the  sum  of 
$1,000.  S.  executed  a  sealed  guaranty  of  the  debt.  Seven  years 
later,  C.  sued  S.  on  the  guaranty.  (1)  What  are  the  rights  of  S.? 
(2}  What  would  they  be  if  P.  had  been  discharged  in  bankruptcy; 
and  (3)  if  P.  had  received  a  formal  release  from  C.? 

(1)  S.  has  no  defense.     The  Statute  of  Limitations  would  be  a 
defense  to  P.  against  C.    but  the  guaranty,  being  a  specialty,  is 
not  barred  by  the  lapse  of  seven  years,  and  the  fact  that  the  statute 
runs  in  favor  of  a  principal  debtor  does  not,  according  to  the 
weight  of  authority,  release  the  surety.     Xelson  v.  First  Xat.  Bank, 
69  Fed.  Eep.  798.     In  this  case  the  surety  has  lost  his  right  of 
subrogation,  since  the  creditor  no  longer  has  any  rights  against  the 
principal  to  which  he  can  be  subrogated.     His  right  of  indemnity 
is,  however,  still  perfect,  for  the  statute  starts  to  run  against  that 
only  when  the  surety  actually  pays.     Hall  v.  Thayer,  12   Mete. 
(Mass.)  130. 

(2)  If  P.  has  been  discharged  in  bankruptcy,  S.  is  still  liable  to 
C.,  but  has  no  right  over  against  P.  beyond  the  right  to  prove  his 
claim  in  bankruptcy  as  a  creditor,  since  P.  has  been  released  by  the 
discharge.     Cochrane  v.  Gushing,  12-i  Mass.  219;  Mace  v.  Wells, 
7  How.  (U.  S.)  272. 

(3)  If  P.  has  been  released  by  the  act  of  C..  the  release  inures  to 
the  benefit   of   S.   Stearns,    Suretyship,   §    102.      Such   a   release 
destroys  S.'s  right  of  subrogation,  since  there  no  longer  exists  any 
right  in  favor  of  C.  to  which  he  can  be  subrogated,  and  for  this 
reason  S.  is  discharged. 

In  general,  it  may  be  said  that  discharge  of  a  principal  debtor  by 
any  cause  other  than  the  act  of  the  creditor  does  not  discharge  the 
surety ;  but  that  any  act  by  a  creditor  which  results  in  the  complete 
or  partial  discharge  of  the  principal  debtor  releases  the  surety  pro 
tantn*  "The  creditor  can  do  no  act  by  which  he  reduces  the  principal's 
liability,  without  at  the  same  time  reducing  the  surety's  liability,  at 
least  to  the  same  extent  But  the  rule  is  very  different  where  the  law 


SURETYSHIP.  415 

reduces  or  absolves  the  principal's  liability,  without  the  fault  or  pro- 
curement of  the  creditor."  Stone,  J.,  in  Bean  v.  Chapman,  62  Ala.  58. 
This  principle  would  not,  of  course,  apply  to  a  case  where  there  is  noth- 
ing to  indicate  to  the  creditor  that  one  of  two  several  obligors  is  only 
a  surety. 

Participation  by  a  creditor  in  a  composition  of  his  debtor's  creditors, 
which  results  in  the  debtor's  discharge  under  a  statute,  is  not  a  dis- 
charge to  the  debtor's  surety.  Cilley  v.  Colby,  Gl  N.  H.  63.  The  case 
is  treated  like  one  of  bankruptcy  rather  than  of  voluntary  release  by 
the  creditor.  Cf.  Paddleford  v.  Thacher,  48  Vt.  574,  and  American  Bank 
v.  Baker,  4  Mete.  (Mass.)  164. 

The  theoretical  basis  of  the  surety's  discharge  in  these  and  similar 
cases  is  that  by  the  act  of  the  creditor  one  of  the  surety's  rights  —  sub- 
rogation, indemnity,  contribution,  or  exoneration  —  has  been  impaired. 
The  surety  is  a  favorite  of  the  law  and  any  act  by  the  creditor  which 
causes  him  such  prejudice  works  his  discharge. 

It  is  also  held  that  where  a  creditor's  release  to  his  debtor  expressly 
reserves  his  rights  against  the  surety  the  surety  remains  liable,  the 
release  being  construed  merely  as  a  personal  covenant  that  the  creditor 
will  not  himself  sue  the  principal  debtor.  The  surety's  rights  against 
him,  accordingly,  remain  unimpaired.  Bateson  v.  Gosling,  L.  R..  7  C. 
P.  9 ;  see  Dupee  v.  Blake,  148  111.  453 ;  cf.  Commercial  Bank  v.  Jones, 
L.  R.  1893,  A.  C.  313 ;  see  supra,  tit.  Bills  and  Notes,  ques.  27.  In  such 
cases,  while  the  creditor  would  have  no  right  to  sue  the  principal  for  his 
own  use.  equity  would  doubtless  keep  alive  the  creditor's  right  against 
the  principal  where  the  surety  sought  to  use  it  by  subrogation. 

2.     The  Giving  of  Time  to  the  Principal  Debtor. 

13.  P.  owed  C.  $1,000,  S.  being  surety.  Before  the  money  was 
due,  C.  agreed  with  P.,  who  was  insolvent,  that  he  would  extend 
the  time  of  payment  three  days  if  P.  would  get  X.  to  secure  the 
debt  by  first  mortgaae  on  certain  land  of  X.,  worth  $10,000.  P. 
did  so.  The  debt  being  unpaid  after  the  extension,  C.  sues  S., 
alleging  that  the  transaction  benefited  S.  by  bringing  in  another 
surety.  What  are  S.'s  rights? 

S.  is  absolutely  discharged.  Where  a  creditor,  by  a  binding 
contract,  extends  the  principal  obligor's  time  for  performance,  the 
surety  is  released,  because  his  right  of  subrogation  is  prejudiced 
during  the  period  of  such  extension.  The  court  will  not  inquire 
whether  or  not  the  surety  is  actually  damaged,  nor  whether  he  re- 
ceives counterbalancing  advantages.  This  is  universally  law.  1 
Brandt.  Suretyship  (3d  ed.).  §  376;  Froude  v.  Bishop,  25  K  Y. 
App.  Div.  514:  United  States  v.  Am.  Bonding  Co..  89  Fed.  Rep. 
925.  In  the  leading  case  of  Eees  v.  Berrington.  2  Ye?.  Jr.  540, 
the  court  said:  "He  (the  surety)  has  a  right  the  day  after  the 
bond  is  due  to  come  here  and  insist  upon  it?  hems'  put  in  suit :  The 
obligee  has  suspended  that,  till  the  time  contained  in  the  notes  runs 


416  QUESTIONS  AND  ANSWERS. 

out :  Therefore,  he  has  disabled  himself  to  do  that  equity  to  the 
surety  which  he  has  a  right  to  demand.  *  *  *  You  cannot 
keep  him  bound  and  transact  his  affairs  (for  they  are  as  much  his 
as  your  own)  without  consulting  him.  You  must  let  him  judge 
whether  he  will  give  that  indulgence  contrary  to  the  nature  of  his 
engagement." 

A  surety  is  not  discharged,  however,  if  the  creditor  had  no  notice 
that  he  is  a  surety  and  not  a  principal  obligor  (Wilson  v.  Foot,  11  Mete. 
(Mass.)  285),  nor  if  the  agreement  to  give  time  does  not  amount  to  a 
valid  and  enforceable  contract  (Lowmau  v.  Yates,  37  N.  Y.  601),  nor 
if  it  is  a  mere  forbearance,  not  in  pursuance  of  a  binding  contract. 
Bank  of  Uuiontown  v.  Mackey,  140  U.  S.  220.  Similarly,  a  waiver  by  a 
creditor,  without  consideration,  of  defaults  in  performance  by  the  prin- 
cipal debtor  is  not  sufficient  to  relieve  a  surety.  Michigan  SS.  Co.  v. 
American  Bonding  Co.,  104  N.  Y.  App.  Div.  347. 

In  analogy  to  the  cases  of  release  by  the  creditor,  noted  above,  p.  415, 
it  is  held  that  if,  in  extending  his  debtor's  time,  a  creditor  expressly 
stipulate  with  the  debtor  that  his  right  against  the  surety  be  reserved, 
the  surety  will  still  be  bound,  and  his  right  of  subrogation  accordingly 
kept  alive.  Brandt,  Suretship  (3d.  ed.),  §  413. 

3.    Creditor's  Loss  of  Security. 

14.  S.  became  surety  for  P.'s  unsecured  debt  to  C.  of  $1,000  due 
July  1st.  Thereafter,  and  before  the  debt  became  due,  C.  ad- 
vanced $1,000  more  to  P.,  payable  June  1st,  in  consideration  of 
P.'s  executing  to  him  a  mortgage  on  land  worth  $3,000  as  security 
for  both  debts.  P.  paid  the  $1,000  due  June  ist  and  C.  thereupon 
canceled  the  mortgage.  S.  was  ignorant  of  the  entire  transaction. 
What  are  his  rights  when  sued  by  C.  for  the  $1,000  due  July 
1st? 

S.  is  released.  A  surety  has,  as  part  of  his  subrogation,  a  right 
to  the  benefit  of  all  securities  held  by  the  creditor.  If  this  right  is 
prejudiced  by  the  wilful  act  of  the  creditor,  the  surety  is  discharged 
pro  tanto,  the  burden  of  proof  a.:  to  the  extent  of  the  injury  being 
on  the  creditor.  Allen  v.  O'Donald,  23  Fed.  Eep.  573;  Baker  v. 
Briggs,  8  Pick.  (Mass.)  122;  Fielding  v.  Waterhouse,  8  J.  &  S.  (X. 
Y.)  424.  It  is  immaterial  whether  or  not  the  surety  knew  of  the 
existence  of  the  security  (Mayhew  v.  Crickett,  2  Swanst.  (Eng.) 
185),  and  equally  so  whether  it  was  given  at  or  after  the  time  when 
he  became  surety.  Holland  v.  Johnson.  51  Ind.  346 ;  see  Freaner  v. 
Yingling,  37  Md.  491.  Newton  v.  Chorlton,  2  Drewry.  333,  contra, 
does  not  represent  the  weight  of  authority.  When  P.  executed  the 
mortgage,  S.'s  right  in  it  became  vested,  and  C.  was  in  the  position 
of  a  trustee.  Upon  rjayment,  S.  would  have  been  entitled  to  reim- 
bursement from  the  security.  The  cancellation  of  the  mortgage, 
therefore,  effected  the  surety's  release  to  the  extent  of  the  value 
of  the  abandoned  securitv.  and  as  that  value  was  more  than  the 
amount  of  the  debt  the  discharge  was  complete. 


SURETYSHIP.  417 

So  a  surety  is  discharged  where  the  security  is  improperly  used  by 
the  creditor,  as  where  it  is  sold  privately  instead  of  at  public  sale. 
Holmes  v.  Williams,  177  111.  386.  It  has  been  held  that  a  surety  is 
discharged  if  the  creditor  releases  security,  whether  or  not  the  creditor 
knew  him  to  be  a  surety.  Templeton  v.  Shakley,  107  Pa.  St.  370; 
Martin  v.  Taylor,  8  Bush  (Ky.),  384.  On  principle,  It  would  seem  that 
this  holding  is  erroneous,  and  it  is  opposed  to  the  weight  of  authority. 
Cases  collected,  27  Aru.  &  Eug.  Ency.  of  Law  (2d  ed.),  518. 

The  release  of  security  does  not,  in  all  cases,  operate  as  a  discharge 
of  the  surety.  If  the  circumstances  are  such  that  a  release  of  security 
by  the  creditor  has  certainly  worked  no  damage  to  the  surety  he  is 
not  discharged  (Neff's  Appeal,  9  W.  &  S.  (Pa.)  36;  Hardwick  v. 
Wright,  35  Bear.  133).  but,  as  stated  above,  the  surety  is  given  the 
benefit  of  any  doubt,  and  the  creditor  must  prove  that  the  surety  has 
not  been  injured.  Dunn  v.  Parsons,  40  Hun  (X.  Y.),  77;  Fielding  v. 
Waterhouse,  8  J.  &  S.  (N.  Y.)  424.  Indeed,  some  cases  go  so  far  as  to 
say  that  the  surety's  right  to  discharge  is  absolute,  and  that  the  courts 
will  not  inquire  whether  he  is  actually  damaged.  See  Antisdel  v.  Wil- 
liamson, 1G5  X.  Y.  372.  Where  the  surety  has  in  his  hands  funds  of  the 
principal  sufficient  to  indemnify  him  it  would  seem  that  he  is  not  dis- 
charged by  a  release  of  security  because  he  is  not  damaged.  See 
Thomas  v.  Wason,  8  Colo.  App.  452. 

By  analogy  to  cases  of  release  of  security  it  is  held  that  where  a 
piece  of  work  is  done  under  contract,  payments  to  be  made  in  instal- 
ments as  the  work  progresses,  the  contractor's  surety  is  discharged  if 
the  employer  pays  an  instalment  before  the  contractor  has  completed 
the  specified  portion  of  the  work.  Taylor  v.  Jeter,  23  Mo.  244;  Village 
of  Chester  v.  Leonard.  68  Conn.  495. 

As  a  surety's  right  of  subrogation  involves  a  right  in  securities  held 
by  the  creditor,  so  his  right  of  contribution  from  cosureties  involves  a 
similar  right  in  securities  held  by  them.  See  pp.  410,  411,  supra. 

15.  C.  recovered  judgment  against  P.,  who  owned  a  tract  of  land. 
By  statute,  judgments  were  a  lien  for  ten  years  on  lands  of  the 
judgment  debtor.  C.  allowed  eleven  years  to  go  by,  and  then  sued 
S.  on  a  bond  which  he  had  executed  as  P.'s  surety.  Has  S.  a 
defense? 

Yes,  according  to  the  weight  of  authority,  he  is  discharged  up 
to  the  extent  of  the  value  of  the  lost  lien.  As  already  noted,  a 
creditor  ordinarily  owes  a  simple  surety  no  duty  of  diligence  in 
suing  the  debtor,  p.  404,  supra.  Mere  failure  on  C.'s  part  to 
bring  action  would  not  have  discharged  S.,  for  S.  should  have 
paid  the  debt  and  brought  suit  himself.  But  the  judgment,  once 
recovered,  was  a  lien  on  P.'s  land,  and  C..  having  thus  obtained 
security,  was  bound  to  be  diligent  in  preserving  and  realizing  on  it. 
Clow  v.  DeYby  Coal  Co.,  98  Pa.  St.  432 ;  Sherraden  v.  Parker,  24 
Iowa,  28;  Stearns,  Suretyship,  p.  137  et  seq. 

27 


418  QUESTIONS  AND  ANSWERS. 

The  law  is  by  no  means  settled  as  to  cases  where  security  Is  lost  by 
the  creditor's  inactivity,  or  by  his  neglect  to  take  measures  to  perfect 
and  realize  on  it.  Some  courts  apply  the  principle  that  a  creditor  owe» 
no  duty  of  diligence  to  the  extent  of  holding  that  he  may  passively- 
allow  security  to  slip  from  his  fingers  (Wasson  v.  Hodshire.  108  Ind. 
26 ;  cf.  Freaner  v.  Tingling,  37  Md.  491 ) .  and  need  not  take  active  steps 
to  enforce  it.  Carver  v.  Steele,  116  Cal.  116.'  In  Pennsylvania  it  is 
held  that  allowing  a  judgment  lien  to  expire,  as  in  the  case  supposed 
above,  does  not  discharge  the  surety.  Kindt's  Appeal,  102  Pa.  St.  441. 
The  weight  of  authority  is,  however,  believed  to  be  to  the  contrary,  and 
the  creditor  is  considered  in  a  measure  a  trustee  of  the  security.  See 
City  Bank  v.  Young,  43  N.  H.  457;  Hayes  v.  Ward,  4  Johns.  Ch.  (X.  Y.) 
122.  So  it  has  been  held  that  a  surety  is  discharged  to  the  extent  of 
his  injury  if  the  creditor  lose  security  by  failure  to  give  notice  of  dis- 
honor of  a  note  (see  City  Bank  v.  Young,  43  X.  H.  457,  at  p.  462)  ;  by 
negligent  failure  to  collect  a  claim  (see  Wakeman  v.  Gowdy,  10  Bosw. 
(X.  Y.)  208;  Word  v.  Morgan,  Sneed  (Tenn.),  79;  by  failure  to  give  no- 
tice of  an  equity,  which  neglect  resulted  in  the  extinction  of  the  equity  by 
a  sale  for  value  without  notice  (Strange  v.  Fooks,  4  Giff.  408)  ;  by  fail- 
ure to  record  an  assignment  and  to  exercise  a  right  of  entry  (Wulff  v. 
Jay,  L.  R.,  7  Q.  B.  756;  but  see  N.  Y.  Exch.  Bank  v.  Jones.  9  Daly  (X. 
Y.),  248)  ;  by  delaying  to  enter  judgment  on  a  verdict,  where  the  debtor 
became  insolvent  during  the  delay  (Hayes  v.  Little,  52  Ga.  555,  con- 
struing a  statute)  ;  and.  in  general,  by  failure  to  "  account  not  only 
for  the  money  he  has  actually  made  out  of  the  pledge,  but  also  for 
the  moneys  he  might,  ought,  and  should  have  made  out  of  the  pledge, 
and  he  must  allow  for  that  whether  he  made  them  or  not,  and  if  by 
laches  he  has  diminished  the  value  of  the  pledge  he  is  bound  to  allow 
for  the  sum  he  ought  to  have  made."  Blackburn,  J.,  in  Polak  v.  Everett, 
L.  R.,  1  Q.  B.  D.  669. 

It  has  even  been  held  that  where  a  creditor  fails  in  this  duty  the  surety 
is  discharged,  even  though  the  creditor  was  ignorant  that  he  was  a 
surety  and  not  a  joint  debtor.  Holt  v.  Bodey,  18  Pa.  St.  207;  contra, 
Parsons  v.  Harrold,  46  W.  Va.  122;  Guild  v.  Butler,  127  Mass.  386, 
semble.  The  decisions  contra  seem  right  on  principle.  Of  course, 
where  a  surety  has  expressly  stipulated  for  diligence  on  the  part  of 
the  creditor,  in  preserving  and  realizing  on  securities,  he  is  discharged 
in  every  jurisdiction  if  this  duty  is  neglected  by  the  creditor.  Walker 
v.  Goldsmith,  7  Oreg.  161 

4.  Alteration    of   Contract   or   Change   in   Circumstances   Affecting 

Bisk. 

16.  S.  became  surety  for  P.  on  a  lease  to  P.  of  sixteen  acres  of 
land  at  a  fixed  rental.  It  was  later  agreed  between  P.  and  the 
lessor,  C.,  that  two  acres  should  be  surrendered  in  consideration 
of  C's  making  a  separate  lease  to  P.  of  another  six-acre 'lot  without 
rental.  C.  sues  S.  counting  on  the  lease  as  originally  made  and 
also  as  modified.  Has  S.  a  defense? 


SURETYSHIP.  419 

Yes.  To  suit  on  the  modified  lease  he  may  plead  nonassumpsit ; 
to  suit  on  the  original  lease  he  may  plead  the  modification  which  has 
altered  it. 

The  terms  alteration  and  variation  are  used  almost  interchangeably 
in  the  eases.  Irrespective  of  nomenclature,  however,  a  distinction  be- 
tween two  classes  of  cases  should  be  borne  in  mind.  (1)  Those  where 
the  original  agreement  between  principal  and  creditor  has  been  changed 
or  altered  —  either  by  physical  alteration  on  the  face  of  a  written  in- 
strument or  by  collateral  contract  rescinding  or  modifying  all  or  a  part 
of  the  original  agreement;  and  (2)  those  where,  while  the  original  con- 
tract  remains  unchanged,  its  performance  as  between  creditor  and  prin- 
cipal is  not  in  precise  accordance  with  its  terms,  or  where  the  principal 
and  creditor  have  in  the  course  of  performance  brought  about  a  con- 
dition of  affairs  not  fairly  to  have  been  expected  by  the  surety.  In 
the  first  class  of  cases,  where  the  contract  has  been  altered  without  his 
consent  or  ratification,  it  is  clearly  open  to  the  surety  to  defend  a  suit  on 
the  altered  contract  on  the  ground  that  he  never  made  such  a  contract 
City  of  New  York  v.  Clark,  84  N.  Y.  App.  Div.  383.  "  2Vou  haec  in 
foedera  veni  is  an  answer  in  the  mouth  of  the  surety  from  which  the 
obligee  can  never  extricate  his  case,  however  innocently  or  by  whatever 
kind  intention  to  all  parties  he  may  have  been  actuated."  Bethune  v. 
Dozier,  10  Ga.  235.  He  may  equally  defend  a  s-uit  on  the  original  con- 
tract by  pleading  its  alteration  or  partial  rescission,  and  this  defense  is 
in  some  jurisdictions  absolute  (Antisdel  v.  Williamson,  165  X.  Y.  372; 
Polak  v.  Everett,  L.  R.,  1  Q.  B.  D.  669),  and  everywhere  is  valid  if  the 
change  might  work  him  injury.  In  the  second  class  of  cases  the  defense 
of  non-assumpsit  is  not  available,  for  the  original  contract  remains  un- 
changed, and  the  question  is  merely  whether  the  surety's  risk  has  been 
unfairly  increased  by  actions  of  the  principal  and  surety  dehors  the  con- 
tract. See  pp.  420,  421,  infra. 

17.  P. -made  a  ncte  to  C.  for  $1,000,  guaranteed  &//  S.,  and 
payable  in  six  months  with  six  per  cent,  interest.  After  delivery, 
C.  and  P.  by  agreement  struck  from,  the  note  the  words  "six  per 
•cent."  and  substituted  the  words  "four  per  cent."  Is  S.  dis- 
charged? 

This  is  clearly  a  case  of  alteration,  and  indeed  of  physical  altera- 
tion on  the  face  of  the  instrument.  S.  never  guaranteed  a  four 
per  cent,  note,  yet  the  change  can  by  no  possibility  injure  him.  and 
works,  in  fact,'  an  actual  decrease  of  his  liability.  The  cases  are 
irreconcilable.  In  Cambridge  Savings  Bank  v.  Hyde.  131  Ma« 
77,  where  a  similar  change  was  made  by  indorsement  on  the  back 
of  a  note,  the  court  held  that  such  indorsement  constituted  a  mere 
collateral  agreement,  which  could  not  hurt  the  surety,  and  there- 
fore did  not  discharge  him,  but  distinguished  the  case  from  one 
where  the  change  wa?  made  on  the  face  of  the  note  by  erasure  or 
interlineation,  which  destroyed  the  identity  of  the  contract. 


420  QUESTIONS  AND  ANSWERS. 

Morton,  J.,  said :  "  Where  the  act  of  which  the  surety  complains 
is  a  new  agreement,  changing  some  of  the  terms  of  the  original 
agreement,  we  think  the  true  rule  is  that,  if  such  new  agreement 
is.  or  may  be  injurious  to  the  surety,  or  if  it  amounts  to  a  substitu- 
tion of  the  new  agreement  for  the  old,  so  as  to  discharge  and  put 
an  end  to  the  latter,  the  surety  is  discharged.  But  if  the  change 
in  the  original  contract  from  its  nature  is  beneficial  to  the  surety, 
or  if  it  is  self-evident  that  it  cannot  prejudice  him,  the  surety  is 
not  discharged."  The  weight  of  authority  seems,  however  un- 
fortunately, to  be  opposed  to  this  view,  and  to  hold  that  the 
surety  is  entitled  to  stand  on  the  strict  letter  of  the  contract  and  to 
decline  to  be  bound  if  any  alteration  is  made  even  though  there 
is  no  erasure.  Antisdel  v.  Williamson,  165  X.  Y.  372 ;  Weir  Plow 
Co.  v.  Walmsley,  110  Ind.  242;  Driscoll  v.  Winters,  122  Cal.  65. 
In  cases  of  erasure  or  other  physical  change  in  the  face  of  an  in- 
strument, made  with  the  creditor's  consent,  the  weight  of  authority 
holds  the  surety  discharged,  irrespective  of  any  fraudulent  intent 
on  the  part  of  the  creditor.  Hewins  v.  Cargill,  67  Me.  554;  Coburn 
v.  Webb,  56  Ind.  96;  Wood  v.  Steele,  6  Wall.  (U.  S.)  80,  (where 
the  change  was  made  by  the  principal  debtor  without  creditor's 
knowledge).  The  rule,  however,  has  been  relaxed  by  some  courts 
where  the  alteration  was  made  innocently.  Milbery  v.  Storer, 
75  Me.  69. 

The  strictness  of  the  rule  as  to  erasure  is  doubtless  connected 
with  the  "  technical  common-law  principle  that  the  obligation  of  a 
specialty  has  no  existence  apart  from  the  document  itself."  16 
Harv.  Law  Rev.  512.  It  is  also  based  on  considerations  of  policy 
which  forbid  a  man*  who  has  been  guilty  of  spoliation  to  produce 
the  mutilated  document  as  evidence  of  his  right.  "  To  prevent 
and  punish  such  tampering,  the  law  does  not  permit  the  plaintiff 
to  fall  back  upon  the  contract  as  it  was  originally.  In  pursuance 
of  a  stern  but  wise  policy,  it  annuls  the  instrument  as  to  the  party 
sought  to  be  wronged."  Swayne,  J.,  in  Woodv.  Steele,  6  Wall.  (U. 
S.)  80.  Of  course  this  argument  fails  of  its  reason  where  the  era- 
sure or  interlineation  has  taken  place  by  accident  or  by  the  act  of  a 
stranger.  In  such  case,  according  to  the  better  view,  the  actual  • 
contract  between  the  parties  is  unaltered  and  its  proof  is  not  pre- 
vented by  such  damage  to  the  written  evidence  of  it.  The  true 
contract  may  be  shown.  Anderson  v.  Bellenger,  87  Ala.  334;  U.  S. 
v.  Spaulding,  3  Mason  (U.  S.),  478;  1  Greenl.  Ev.,  §  566. 

* 

18.  P.  was  employed  by  C.  as  "bookkeeper,  and  S.  executed  a 
fidelity  bond  for  him  in  that  capacity.  Subsequently  P.,  whi7? 
retaining  his  position  as  C.'s  bookkeeper,  became  his  cashier  also. 
P.  thereafter  embezzled  certain  money  of  C.,  and  concealed  it  by 
false  entries  as  bookkeeper.  C.  now  sues  S.  on  the  fidelity  bond 
to  recover  the  amount  of  P's  embezzlement.  Is  S.  liable? 

Xo.  Kellog  v.  Scott,  58  X.  J.  Eq.  344.  The  court  held  that 
the  term's  of  the  fidelity  bond,  while  not  covering  employment  as 


SURETYSHIP.  421 

» 

cashier,  were  broad  enough  to  make  S.  liable  for  "abstractions 
either  by  the  bookkeeper  himself  in  any  capacity,  or  by  another,  if 
the  abstractions  were  intentionally  concealed  from  the  employer' by 
means  of  the  false  entries  made  by  the  bookkeeper."  Nevertheless, 
P.'s  added  duties  as  cashier  created  "  a  material  change  by  act  of 
the  parties  without  knowledge  of  the  surety,  in  the  nature  of  the 
duties  of  the  employee,  and  it  was  a  change  that  materially  altered 
the  duties  of  the  employment,  so  as  to  affect  the  peril  of  the*  surety," 
and  therefore  he  was  discharged.  It  is  noteworthy  that  this  is  not 
a  case  of  alteration  or  modification  of  the  original  contract;  the 
decision  rests  purely  on  the  ground  that  circumstances  attended 
the  execution  of  the  contract  not  fairly  to  have  been  contemplated 
by  the  surety.  It  is  a  case  of  variation  of  risk. 

Similar  reasons  underlie  the  case  referred  to  supra,  p.  417,  where  the 
surety  on  a  building  contract  is  held  discharged  when  the  employer 
pays  the  builder  an  instalment  of  the  price  before,  under  the  contract, 
it  has  been  earned.  General  Steam  Navig.  Co.  v.  Rolt,  6  C.  B.  N.  S. 
550;  see  also  Dickson  v.  MacPherson,  3  Grant's  Ch.  185. 

It  is  to  be  noted  that  many  so-called  cases  of  alteration  and  variation 
in  reality  involve  no  question  of  the  law  of  suretyship,  but  merely  one 
of  interpretation  of  the  surety's  contract.  For  instance,  where  an  offi- 
cial's bond  secured  his  fidelity  in  his  "said  appointment"  it  was  held 
that  a  reduction  of  his  salary  did  not  discharge  the  surety,  for  the 
reason  that  the  amount  of  the  salary  had  never  been  a  term  of  the 
surety's  contract.  Frank  v.  Edwards,  8  Wels.  Hurl.  &  Gor.  214.  So 
in  the  frequent  cases  of  sureties  on  builders'  contracts  where  changes 
are  made  in  the  specifications  during  progress  of  the  work  the  true 
question  is  usually  whether  the  proper  interpretation  of  the  surety's 
contract  makes  these  specifications  a  term  of  his  obligation.  If  so, 
alteration  of- them  alters  the  contract  and  he  is  discharged;  if  not,  his 
liability  continues  unless  there  are  special  circumstances  which  vary 
his  risk  and  raise  an  equity  in  his  favor.  See  United  States  v.  Freel, 
186  U.  S.  309 ;  reported  below  in  99  Fed.  Rep.  237,  and  92  Fed.  Rep.  299 ; 
Fuller  Co.  v.  Doyle,  87  Fed.  Rep.  687.  A  similar  question  of  interpreta- 
tion is  shown  in  Reese  v.  United  States,  8  Wall.  (U.  S.)  13. 

5.  Fraud,  Misrepresentation  or  Concealment  of  Material  Facts. 

19.  S.  was  'surety  on  a  fidelity  bond  for  P.,  a  cashier  employed 
by  C.  P.  became  a  defaulter  and  thereupon  C.  sued  S.  on  the 
bond.  Plea,  that  since  the  execution  of  the  bond  and  prior  to 
such  default,  P.  had  been  guilty  of  embezzlement  to  the  knowledge 
of  C.,  who  had  nevertheless  retained  him  as  cashier  upon  his  mak- 
ing restitution,  but  without  informing  S.  of  the  facts.  Demurrer. 
What  judgment? 

Judgment  for  S.  By  continuing  P.  in  the  employment  after 
actual  knowledge  of  his  dishonesty,  C.  has  released  the  snretv. 
"  If  the  dishonesty  had  existed  before  the  surety  became  bound, 


422  QUESTIONS  AND  ANSWERS. 

and  the  master  had  concealed  it,  the  surety  would  not  have  beeu 
liable,  and  the  cases  are  the  same  in  principle.  Moreover,  upon, 
discovering  the  dishonesty,  the  master  had  a  right  to  discharge  the 
servant,  but  by  continuing  him  in  the  service  he  lost  that  right." 
1  Brandt,  Suretyship  (3d  ed.),  §.477. 

Such  cases  fall  within  the  general  rule  that  any  dealing  on  the 
part  of  a  creditor  which  unfairly  burdens  the  surety  or  prejudices  his 
remedy  will  discharge  him.  They  illustrate  the  peculiar  care  with  which 
the  courts  guard  the  rights  of  a  surety  against  abuse.  An  employer 
is  bound  to  disclose  to  one  who  becomes  surety  to  him  for  an  em- 
ployee any  known  previous  dishonesty  of  the  employee  in  the  service. 
Third  Nat.  Bank  v.  Owen,  101  Mo.  558;  see  Franklin  Bank  v.  Stevens, 
39  Me.  532.  He  must  also  reply  fully  and  fairly  to  the  inquiries  made 
by  the  surety  before  binding  himself.  Bank  of  Monroe  v.  Anderson  Co., 
65  Iowa,  692.  Also,  he  must  disclose  any  circumstances  peculiarly  within 
his  knowledge,  with  respect  to  the  surety's  risk,  which  make  the  par- 
ticular case  exceptional.  "  There  may  be  circumstances  known  to  the 
party  taking  a  guaranty  for  another,  of  so  decisive  a  character  that  it 
could  not  be  supposed  that  if  known  to  the  surety  he  would  have  en- 
tered into  the  obligation,  and  in  such  a  case  the  party  taking  the  secu- 
rity 'cannot  withhold  the  information  and  enforce  the  obligation." 
Andrews.  J.,  in  Howe  Machine  Co.  v.  Farrington,  82  N.  Y.  121.  Thia 
doctrine  is  not,  however,  carried  so  far  as  to  discharge  an  employee's 
surety  because  he  is  not  informed  of  prior  derelictions  on  the  part  of 
the  employee  of  which  the  employer  had  no  knowledge,  even  though  he 
was  negligent  in  not  finding  them  out.  Bowne  v.  Mt.  Holly  Nat.  Bank, 
45  N.  J.  Law,  360;  Williams  v.  Lyman,  88  Fed.  Rep.  237.  Graves  v. 
Lebanon  Nat.  Bank,  10  Bush  (Ky.),  contra,  23,  does  not  represent  the 
general  law.  Nor  does  his  duty  to  disclose  include  "  circumstances 
which  may  indirectly  affect  the  liability  of  the  surety,  such  as  the 
skill  or  the  want  of  it;  the  industry  or  indolence;  the  care  or  negli- 
gence ;  the  wealth  or  poverty  of  the  party  for  whose  faithfulness  or 
responsibility  a  surety  is  sought.  *  *  *  The  effects  which  result 
from  such  personal  qualities  are  matters  for  which  the  surety  ordinarily 
assumes  the  responsibility."  Rice,  J.,  in  Franklin  Bank  v.  Stevens, 
39  Me.  532.  That  the  principal  debtor  is  a  gambler  need  not  be  dis- 
closed (Atlas  Bank  v.  Brownell,  9  R.  I.  168)  ;  nor,  according  to  the 
weight  of  authority,  need  the  fact  that  the  principal  is  insolvent. 
Roper  v.  Sagamon  Lodge  No.  6,  91  111.  518;  and  see  Farmers'  Bank  v. 
Braden.  145  Pa.  St.  473;  contra,  Small  v.  Currie,  2  Drewry,  102,  semble. 
It  would  seem,  moreover,  that  the  courts  are  slow  to  discharge  the  sure- 
ties on  an  official  bond  running  to  the  government,  even  where  the 
discharge  would  be  allowed  in  the  case  of  a  private  obligation.  See 
U.  S.  v.  Kirkpatrick,  9  Wheat.  (U.  S.)  720;  27  Am.  &  Eng.  Eney. 
(2d  ed.)  526. 

So,  in  general,  where  an  obligor  is  so  far  in  default  that  the  obligee 
has  the  right  to  terminate  the  contract,  a  guarantor  or  a  surety  known 


SURETYSHIP.  423 

to  the  obligee  to  be  such  may  insist  that  the  obligee  exercise  his  right 
terminate  the  contract,  and  thus  prevent  the  accumulation  of  further 
damages  for  the  surety  to  pay.  Hunt  v.  Roberts,  45  N.  Y.  691;  Phil- 
lips v.  Foxall,  L.  R.,  7  Q.  B.  666. 

20.  C.  leased  a  house  to  P.  at  an  annual  rental  payable  in  ad- 
vance, the  lease  reciting  that  the  house  stood  on  certain  land  be- 
longing to  C.  At  C.'s  request  S.  became  P's  surety.  To  an  action 
by  C.  for  rent,  S.  pleaded  that  in  fact  the  house  encroached  one 
inch  on  the  adjoining  lot,  which  belonged  to  X.  Demurrer.  What 
judgment? 

Judgment  for  S.  The  lease  misrepresented  a  material  fact  to 
the  prejudice  of  S.  Of  course,  if  C.  knew  and  concurred  in  this 
misrepresentation,  S.  would  clearly  be  discharged.  But  even  if 
C.  was  ignorant  of  the  encroachment  the  result  is  the  same.  A 
surety  has  a  right  to  rely  on  the  recitals  of  the  principal  obligation, 
Stone  v.  Compton,  5  Bing.  N".  C.  142;  see  Frisch  v.  Miller,  5 
Pa.  St.  310.  The  creditor,  by  becoming  a  party  to  the  obliga- 
tion and  requesting  S.  to  do  so,  indorses  such  recitals.  If  he  mis- 
represents any  material  matter  to  the  surety  ta  induce  him  to  bind 
himself,  the  surety  is  discharged  and  the  fact  that  the  creditor 
acted  in  good  faith  makes  no  difference.  Willis  v.  Willis,  17  Sim. 
218 ;  Molson's  Bank  v.  Tuslay,  8  Ont.  293. 

In  the  case  supposed,  the  lease  might  be  rendered  valueless  if 
X.  chose  to  maintain  ejectment,  and  the  surety  did  not  bargain 
for  this  risk.  The  result  might  well  be  different,  however,  if  the 
suit  were  for  rent  for  past  occupancy.  If  in  fact  P.  had  occupied 
ihe  premises  undisturbed  for  a  year,  S.  would  doubtless  bo  liable 
to  make  good  that  year's  rent. 

Of  course,  any  actual  fraud  or  unfair  dealing  practiced  on  the  surety 
by  the  creditor  to  induce  him  to  become  bound  may  be  set  up  by  him 
in  avoidance  of  his  obligation.  Blest  v.  Brown,  3  Gift.  450. 

The  distinction  should  be  borne  in  mind  between  cases  of  the  obligee's 
actual  misrepresentation  of  a  fact  and  those  where  he  asserts  that  a 
certain  result  will  take  place,  or  a  certain  state  of  affairs  come  to  pass. 
If  such  statements  are  merely  of  his  expectation,  failure  to  make  them 
good  will  not  discharge  the  surety.  If,  on  the  contrary,  they  are  prom- 
ises, embodying  an  essential  portion  of  the  performance  on  the  obligee's 
side,  their  breach  will  work  the  surety's  release  on  the  ground  of  fail- 
ure of  consideration  or  breach  of  implied  or  express  condition.  Thus 
neglect  by  an  employer  to  carry  out  his  expressed  intention  of  regularly 
auditing  an  employee's  accounts  is  held  not  to  release  the  surety  on 
the  employee's  fidelity  bond  (Benham  v.  United  Guarantee  and  Life  As- 
surance Co.,  7  Wels.  Hurl.  &  Gor.  744;  cf.  Emery  v.  Baltz,  94  N.  Y. 
408)  ;  whereas  failure  to  apply  a  note  to  discharge  a  particular  obliga- 
tion as  promised  does  release  the  surety.  Farmers'  Bank  v.  Hathaway, 
34  Vt  538 ;  see  'Ham  v.  Greve,  34  Ind.  18. 


4.2 -i  QUESTIONS  AND  ANSWERS. 

21.  C.  loaned  a  sum  of  money  to  P.,  and  S.  became  P.'s  surety.       If 
was,  however,  understood  between  P.  and  C.  that  the  money  should 
not  be  actually  advanced,  but,  instead,  a  debt  of  the  same  amount 
owed  by  P. -to  C.  should  be  canceled,  and  this  was  done.     S.  was 
not  informed  of  this.    Is  he  discharged? 

Yes.  Doughty  v.  Savage,  28  Conn.  146.  "  One  who  becomes 
a  surety  for  another  must  ordinarily  be  presumed  to  do  so  upon  the 
belief  that  the  transaction  between  the  principal  parties  is  one 
occurring  in  the  usual  course  of  business  of  that  description,  sub- 
jecting him  only  to  the  ordinary  risks  attending  it,  and  the  party 
to  whom  he  becomes  a  surety  must  be  presumed  to  know  that  such 
will  be  his  understanding  and  that  he  will  act  upon  it  unless  he  is 
informed  that  there  are  extraordinary  circumstances  affecting  the 
risk."  Franklin  Bank  v.  Cooper,  36  Me.  179.  An  obligee  must 
let  the  surety  know  fairly  the  real  nature  of  the  transaction.  Such 
a  perversion  of  it  as  this  subjects  the  surety  to  liability  under  cir- 
cumstances very  different  from  those  attending  a  bona  fide  loan 
where  the  principal  debtor  actually  receives  and  controls  the  money. 
It  is  a  variation  of  the  surety's  risk.  In  a  similar  case,  the  court, 
in  holding  the  surety  discharged,  said :  "A  party  giving  a  guar- 
antee ought  to  be  informed  of  any  private  bargain  made  between 
the  vendor  and  vendee  of  goods  which  may  have  the  effect  of  vary- 
ing the  degree  of  his  responsibility."  Per  Abbott,  C.  J.,  in  Pid- 
cock  v.  Bishop,  3  Barn.  &  Cress.  605.  "  The  effect  of  the  bargain 
was  to  divert  a  portion  of  the  funds  of  the  vendee  from  being 
applied  to  discharge  the  debt  which  he  was  about  to  contract. with 
the  plaintiffs,  and  to  render  the  vendee  less  able  to  pay  for  the  iron 
supplied  to  him."  Per  Holroyd,  J.,  id. 

22.  P.  was  indebted  to  C.  in  the  sum  of  $1,000  and  C.  agreed 
to  accept  P.'s  note  at  six  months  with  interest,  provided  S.  would 
indorse  the  note.     S.  did  so  at  P.'s  request,  P.  falsely  representing 
that  the  note  wcs  secured  by  a  mortgage  of  P.'s  house  to  C.    Has 
S.  a  defense  to  a  suit  by  C.  on  the  note? 

Xo.  Eothschild  v.  Frank,  14  X.  Y.  App.  Div.  399.  This  is 
a  case  of  fraud  on  the  surety  by  the  principal  debtor,  the  creditor 
being  innocent.  Such  fraud  forms  no  defense  as  against  a  creditor 
who  has  in  good  faith  and  for  consideration  taken  the  surety's 
obligation.  Western  Xew  York  Life  Ins.  Co.  v.  Clinton,  66  X.  Y. 
.326.  So  if  the  surety  signs  an  obligation  in  blank  and  the  prin- 
cipal fraudulently  fills  in  a  greater  sum  or  other  terms  than  those 
agreed  to  by  the  surety,  or,  in  violation  of  his  promise  to  the 
surety,  fails  to  get  cosureties,  these  facts  do  not  prejudice  an  inno- 
cent creditor.  Butler  v.  United  States,  21  Wall.  (U.  S.)  272;  Ward 
v.  Hackett,  30  Minn.  150.  A  surety  in  his  dealings  with  the  prin- 
cipal must  protect  himself  and  cannot  at  the  creditor's  expense 
avoid  the  consequences  of  a  failure  to  do  so. 


SURETYSHIP.  425 

Two  classes  of  cases  should  be  noted  in  this  connection.  (1)  If  facts 
exist  sufficient  to  charge  the  creditor  with  constructive  notice  of  the 
principal's  fraud  on  the  surety,  or  to  put  him  on  inquiry,  the  surety 
is  released.  Thus  it  is  held  that  where  in  the  body  of  an  obligation 
it  is  recited  that  A.  and  B.  are  to  be  sureties,  and  the  obligation  is 
actually  executed  by  A.  and  X.  as  sureties,  that  fact  is  enough  to  put 
the  creditor  on  inquiry  and  to  release  the  surety.  Woodin  v.  Durfee, 
4t!  Mich.  424;  cf.  Dair  v.  U.  S.,  16  Wall.  (U.  S.)  1. 

(2)  If,  after  the  surety  has  signed,  the  obligation  is  altered  by  the 
principal  or  by  a  stranger,  the  surety  is,  of  course,  not  liable  on  the 
altered  contract,  and  may  defend  under  a  plea  of  non-assumpsit.  Wood 

v    Steele,  6  Wall.  (U.  S.)  80;  supra,  p.  419. 

i 

6.    Notice  of  Bevocation  or  Death  of  Surety. 

23.  S.  promised  C.  that  if  he-  would  from  time  to  time  make 
advances  to  P.  as  P.  asked  for  them  during  the  ensuing  year,  S. 
would  guarantee   their  repayment  up  to  $10,000.     After  $5,000 
has  been  so  advanced,  S.  notified  C.  that  he  would  not  guarantee 
any  further  advances.     What  are  the  rights  of  the  parties? 

The  notice  frees  S.  from  liability  for  further  advances.  His 
promise  to  C.  was  merely  an  offer  for  a  unilateral  contract,  and 
was  unsupported  by  consideration.  Upon  C.'s  actually  making  ad- 
vances and  giving  notice  of  them,  p.  402,  supra,  it  became  a  com- 
pleted contract  binding  upon  S.  to  the  extent  of  such  advances.  As 
to  the  balance  not  yet  advanced,  however,  it  still  remained  a  mere 
offer,  subject  to  revocation  at  the  will  of  the  offerer  in  accordance 
with  the  general  principles  of  contract.  Offord  v.  Davies,  12  C.  B. 
X.  S.  748;  Jordan  v.  Dobbins,  122  Mass.  168.  In  the  same, 
way  such  an  offer  is  revoked  by  the  death  of  the  offerer.  Jordan 
v.  Dobbins,  supra.  In  the  case  last  cited  the  court  said: 

"  Until  it  is  acted  upon,  it  imposes  no  obligation  and  creates  no 
liability  of  the  guarantor.  After  it  is  acted  upon,  the  sale  of  the 
goods  upon  the  credit  of  the  guarantee  is  the  only  consideration 
for  the  conditional  promise  of  the  guarantor  to  pay  for  them.  It 
is  of  the  nature  of  an  authority  to  sell  goods  upon  the  credit  of  the 
guarantor,  rather  than  of  a  contract  which  cannot  be  rescinded 
except  by  mutual  consent.  Thus  such  a  guarantee  is  revocable  by 
the  guarantor  at  any  time  before  it  is  acted  upon.  *  The 

provision  that  it  shall  continue  until  written  notice  is  given  by  the 
guarantor  that  it  shall  not  apply  to  future  purchases  affects  the 
mode  in  which  the  guarantor  might  exercise  his  right  to  revoke  it, 
but  it  cannot*  prevent  its  revocation  by  his  death." 

24.  In  consideration  of  C.'s  appointing  P.  as  his  factor  for  a 
period  of  ten  years,  S.  guaranteed  to  C.  that  P.  would  faithfully 
account  for  all  goods  intrusted  to  him  during  that  time.     At  the 
end  of  a  year  S.  became  suspicious  of  P.'s  honesty  and  gave  C. 
notice  to  procure  another  surety,  saying  that  he  would  no  longer 


426  QUESTIONS  AND  ANSWERS. 

be  responsible.  Two  months  later  S.  died.  C.  took  no  steps  to  pro- 
cure another  surety,  and  when,  five  years  later,  P.  failed  to  account 
for  certain  goods,  C.  sued  S.'s  executors  on  the  guaranty.  Are 
they  liable? 

Yes.  There  was  a  completed  contract,  whereby,  for  a  consid- 
eration, S.  bound  himself  for  a  definite  stated  period.  Such  a 
contract,  like  any  other,  cannot  be  terminated  by  mere  notice,  nor 
is  it  abrogated  by  the  death  of  the  surety.  "  The  death  of  an  indi- 
vidual surety  does  not  operate  to  revoke  an  engagement  on  his 
part  in  the  natura  of  a  continuing  guaranty  for  a  specified  period 
of  time,  and  in  the  event  of  a  default  by  his  principal  within  that 
period,  the  estate  of  the  surety  is  liable  after  his  death.  Where 
the  consideration  for  a  guaranty  is*  given  once  for  all,  the  guaranty 
does  not  cease  upon  the  death  of  the  guarantor."  W.  Bartlett,  J., 
in  Holthausen  v.  Kells,  18  N".  Y.  App.  Div.  80;  affd.,  154  N.  Y. 
776.  A  fortiori  this  is  so,  if  the  guaranty  binds  the  guarantor, 
his  "heirs,  executors,  and  administrators."  Hecht  v.  "Weaver,  34 
Fed.  Eep.  111. 

As  already  pointed  out,  pp.  422,  423,  supra,  where  an  obligor 
is  so  far  in  default  that  his  obligee 'may  refuse  to  go  on  with  the 
contract,  the  guarantor  may  by  notice  require  him  to  do  so,  and 
fix  the  extent  of  his  own  liability  as  of  that  time. 

The  law  is  not  firmly  settled  as  to.  bow  far  a  guarantor's  liability  is 
terminated  by  hns  death,  or  may  be  terminated  by  notice  in  cases  where 
be  has  made  a  guaranty  indefinite  in  time  and  amount,  and  where  the 
principal  is  not  in  default.  In  Lloyd's  v.  Harper,  16  Ch.  Div.  290,  a 
father  guaranteed  his  son's  obligations  as  a  member  of  Lloyd's  Asso- 
ciation in  consideration  of  his  admittance  to  that  body.  Thereafter  the 
*  father  died  and  his  estate  was  sued  on  the  guaranty.  It  was  held  liable. 
James,  L.  J.,  said:  "  Here  the  consideration  is  given  once  for  all,  just 
as  in  the  case  of  the  granting  a  lease  in  which  a  third  party  guaran- 
tees the  payment  of  the  rent  and  the  performance  of  the  covenants. 
*  *  *  If  the  testator  could  at  any  time  have  determined  the  guar- 
anty he  could  have  determined  it  the  next  day.  The  moment  the  son 
was  admitted'  to  the  status  of  an  underwriting  member,  if  the  father 
•was  at  liberty  to  say,  '  I  withdraw  the  guaranty,'  then  the  guaranty 
would  have  been  utterly  futile  and  idle.  If  it  could  not  be  determined 
by  him  the  next  day  there  would  be  no  time  at  which  he  could  have  a 
power  of  determining  it."  In  that  case  the  guaranty  was  indefinite  as 
to  amount,  and  as  to  time  was  only  limited  by  the  extent  of  the  son'3 
life.  While  the  point  decided  was  only  as  to  the  effect  of  the  guaran- 
tor's death,  the  case  may  fairly  be  considered  as  authority  for  the  prop- 
osition that  a  completed  contract  of  guaranty  %for  which  the  stipulated 
consideration  has  been  given  is  not  determinate  by  notice  or  by  the 
guarantor's  death,  even  where  time  and  amount  are  indefinite.  On 
principle  it  would  seem  that  the  law  should  be  so,  and  that  in  the 
absence  of  contrary  provisions,  express  or  implied,  in  the  contract,  a 
guaranty  made  for  consideration  should  not  be  deteriuinable  by  notice 


SURETYSHIP.  427 

or  by  the  guarantor's  death  merely  because  the  obligation  is  not 
limited  by  fixed  bounds  of  time  and  amount.  Calvert  v.  Gordon,  3 
JMaii.  &  Ry.  124 ;  Balfour  v.  Grace,  1902,  1  Cb.  Div.  733.  Nevertheless, 
it  has  been  intimated  by  high  authority  that  in  the  absence  of  such 
limits,  a  guarantor  may  free  himself  upon  giving  reasonable  notice 
to  the  obligee.  Finch,  J.,  in  Emery  v.  Baltz,  94  N.  Y.  408;  O'Brien,  J., 
in  Reilly  v.  Dodge,  131 'N.  Y.  153.  In  neither  of  these  cases  was 
the  point  actually  decided.  Such  a  doctrine  seems  just  if  applied 
-only  to  cases  where  "  the  consideration  is  fragmentary,  supplied  from 
time  to  time  and,  therefore,  divisible."  Lush,  L.  J.,  in  Lloyd's  v. 
Harper,  supra.  The  courts,  in  cases  where  the  obligation  is  indefinite 
as  to  time  and  amount,  will  at  all  events  strain  to  construe  the 
guarantor's  promise  as  a  mere  offer,  revocable  until  acted  on,  or  to 
find  in  the  contract  an  implied  term  that  it  shall  end  upon  the  guar- 
antor's death  or  upon  reasonable  notice.  Coalhart  v.  Clementson,  5 
Q.  B.  D.  42. 

In  cases  where  the  obligation  of  a  surety  is  joint  with  that  of  the 
principal  or  of  cosureties  the  weight  of  authority  holds  that  the  surety's 
estate  is  not  liable  for  defaults  occurring  after  his  death.  Pickersgill 
v.  Lahens,  15  Wall.  (U.  S.)  140;  Davis  v.  Van  Buren,  72  N.  Y.  587; 
contra,  Susoug  v.  Valden,  10  S.  C.  247;  Hudelson  v.  Armstrong,  70  Ind, 
99.  And  where  a  creditor  elects  to  take  a  joint  judgment,  instead  of  a 
joint  and  several  judgment,  against  a  surety  and  others,  and  the  surety 
thereafter  dies,  hi^  estate  is  not  chargeable.  United  States  v.  Price,  9 
How.  (U.  S.)  83. 


TORTS, 


I.    NATURE  AND  CLASSIFICATION  OF  TORTS. 

1.  What  is  a  tort? 

A  tort  is  a  private  or  civil  wrong  or  injury  arising  independent 
of  any  contract,  for  which  the  appropriate  remedy  is  a  common-law 
action.  Clerk  &  Lind.  on  Torts  (3d  ed.)$  p.  1. 

2.  Give  a  classification  of  torts  with  regard  to  the  rights 
which  they,  infringe. ' 

CLASSIFICATION  OF  RIGHTS   AND  TORTS 


RIGHTS. 


ABSOLUTE 


CLife ) 

Limb  V Assault  and  battery. 

Body ) 

PERSONAL  SECURITY. . .  -{  Health Nuisance. 

( Malicious  prosecution . 

Reputation •<  Libel. 

I  ( Slander. 

PERSONAL  LIBERTY False  imprisonment. 

f  f  Violations  of  incidental 

I      rights. 

|  Real •{  Nuisance . 

PRIVATE  PROPERTY  . . .  i  I  Injury  by  fire. 

[Trespass. 
Personal  (Trespass. 

l/e        'al 1  Conversion. 

f  T>rm,    ,    J  Arising  from  relation  of  public  officers  to  j  Violation     of     official 
uo"1     thecommunity 1     duty. 

RELATIVE  -|  [  AJ*^1°g  ]  Husband  Parent  Guardian  Master  { Abduction . 

PRIVATE-)    \r"("     I-      and        and      .  and         and    -(Enticement, 
^relation        wife       cbild      Wftrd    servant  i  Seduction 

STATUTORY Violation  of. 

Indirect  modes  of  violating  different  classes  of  rights. . . .  |  Fraud  an^fdeceit 

Chase's  Notes  on  Torts,  2  Col.  Jur.  144. 

"  AYhere  a  right  exists  there  must  be  a  corresponding  duty  to 
observe  that  right,  and  a  tort  may  be  spoken  of  either  as  a  breach 
of  duty  or  an  infringement  of  a  right."  Clerk  &  Lind.  on  Torts> 
p.  6. 

3.  How  do  torts  resemble  and  differ  from  contracts? 
Torts  resemble  contracts  in  that'they  are  private  acts. 

[428] 


TORTS.  429 

Torts  differ  from  contracts  by  these  qualities:  that  parties  jointly 
committing  torts  are  severally  liable,  without  the  right  to  contribu- 
tion from  each  other;  that  the  death  of  either  party,  as  a  rule, 
destroys  the  right  of  action;  that  persons  under  personal  disabilities 
to  contract  are  nevertheless  liable  for  their  torts.  Clerk  &  Lind. 
on  Torts  (2d  ed.),  37,  53;  Hilliard  on  Torts  (4th  ed.),  §  2;-Spaulding 
v.  Oakes,  42  Yt.  343. 

It  has  been  held,  however,  that  the  rule  that  there  is  no  con- 
tribution between  tort-feasors  only  applies  in  cases  where  the  per- 
son seeking  contribution  must  be  presumed  to  have  known  that 
he  was  doing  an  unlawful  act.  Armstrong  Co.  v.  Clarion  Co.,  66 
Penn.  St.  218;  Bailey  v.  Bussing,  28  Conn.  455. 


4.  How  do  torts  resemble  and  differ  from  crimes? 

Torts  resemble  crimes  in  that  they  infringe  the  same  rights. 
3  Shars.  Bl.  Com.  122. 

Torts  differ  from  crimes  in  that  the  specific  wrongful  intent, 
necessary  for  a  crime,  is  almost  never  necessary  for  a  tort.  A  tort 
is  said  to  be  a  private  wrong,  while  a  crime  is  a  public  one;  but 
this  distinction,  although  a  correct  one,  does  not  prevent  the  same 
act  from  being  considered  both  a  tort  and  a  crime,  a  familiar 
instance  of  this  being  the  case  of  an  assault  and  battery.  3  Shars. 
Bl.  Com.  122. 

5.  In  what  cases  must  the  wrongful  intent  be  proved  in  ac- 
tions in  tort? 

In  malicious  prosecution  and  fraud,  an  actual  intent  to  injure 
or  deceive  must  be  established.  Dietz  v.  Langfitt,  63  Penn.  St. 
234,  240;  McKown  v.  Hunter,  30  N.  Y.  625,  627;  Bowden  v. 
Bowden,  75  111.  143,  147;  Hill  v.  Reif  snider,  46  Ind.  555.  In 
libel  and  slander,  the  actual  intent  to  injure  need  not  be  shown,  if 
the  defamatory  matter  was  such  as  naturally  to  do  injury.  Moore 
v.  Stevenson,  27  Conn.  14;  Hatch  v.  Potter,  7  111.  725,  728;  Smart 
v.  Blanchard,  42  N.  H.  137, 151;  Pennington  v.  Meeks,  46  Mo.  217; 
Haire  v.  Wilson,  9  B.  &  C.  643. 

6.  A.  brings  an  action  in  tori,  and  can  show  no  special  dam- 
age.    In  what  cases  could  he  recover? 

He  could  recover  at  least  nominal  damages,  except  in  an  action 
for  slander  or  libel  where  the  words  were  not  actionable  per  se. 
In  that  case  special  damage  must  be  alleged  in  the  declaration  anc 
proved  at  trial.  Ellicottville,  etc.  v.  Buffalo,  etc.,  R.  R.  Co.,  ^0 
Barb.  (K  Y.)  644;  Allsop  v.  Allsop,  5  H.  &  N.  534. 


430  QUESTIONS  AND  ANSWERS. 

II.  TORTS  AFFECTING  THE  PERSON. 
a.    Assault  and  Battery. 

7.  At  a  public  meeting  A.,  advancing  toward  B.,  told  him. 
that  if  he  said  another  word  he  would  knock  him  down.     B., 
fearing  the  threat,  desisted.     Was  this  an  assault? 

There  would  be  an  assault  here.  The  condition  of  silence  was 
one  that  A.  had  no  right  to  impose,  and  if  B.  refrained  from  speak- 
ing, through  fear,  he  would  have  a  right  of  action.  Read  v.  Coker, 
13  C.  B.  850,  860.  To  constitute  an  assault,  there  need  be  no- 
actual  contact.  An  assault  is  any  lawful  physical  force,  partly 
or  fully  put  in  motion,  creating  a  reasonable  apprehension  on  the 
part  of  the  pea-son  towards  whom  the  action  is  directed,  of  im- 
mediate physical  injury.  2  Bishop's  Grim.  Law  (7th  ed.),  §  23. 

8.  A.  pointed  a  gun  at   B.      The  gun  was  empty,  but    B~ 
thought  it  was  loaded.     Was  A.'s  act  an  assault?     Suppose 
B.  knew  that  the  gun  was  not  loaded.     Suppose  A.  said  he  would 
shoot,  but  did  not  raise  his  gun? 

The  apparent  intention  of  the  assaulting  party  is  the  thing  to 
consider  in  the  first  case.  The  force  was  partly  put  in  motion  and 
caused  reasonable  fear,  and  would  be  an  assault. 

If  B.  knew  that  the  gun  was  not  loaded,  there  would  not  be  a 
reasonable  fear,  and  so  no  assault.  Beach  v.  Hancock.  27  N.  EL 
223. 

Words  alone  will  not  constitute  an  assault,  and  if  A.  did  not 
raise  the  gun  there  would  be  no  act  on  which  to  base  an  action. 
Warren  v.  State,  33  Tex.  517;  Smith  v.  State,  39  Miss.  521. 

9.  A  reached,  through  a  crowd,  to  strike  B.,  but  struck  C.,  by 
mistake,  and  only  grazed  the  clothing  of  B.     D.,  also  in  the 
orowd,  was  negligently  jostled.     Could  B.,  C.,  or  D.  sue  for 
battery  ? 

A  battery  in  general  consists  in  the  unpermitted  (by  the  person 
or  by  the  law)  application  of  force  by  one  man  to  the  person  of 
another,  either  hostilely  without  bodily  harm,  or  negligently  with 
bodily  harm.  Bigelow  on  Elements  of  Torts,  101. 

B.,  therefore,  would  have  a  right  of  action  owing  to  the  hostility. 

C.  also  would  have  a  right  of  action.     Pure  accident  is  not  gen- 
erally ground  for  an  action,  but  if  the  accident  happens  during- 
a  wrongful  act,  the  law  will  not  protect  the  wrongdoer.     James, 
v.  Campbell,  5  Car.  &  P.  372. 

D.  would  have  no  cause  of  action,  unless  actually  injured  by  the 
jostling,  as  there  was  no  hostility  towards  him.     Cooley  on  Torts, 
162. 


TORTS.  431 

b.  Consent. 

10.  A   and  B.   agree  to  spar  to  a  finish.     A.  sues  B.  for  in- 
juries, and  B.  pleads  volenti  non  fit  injuria.     Can  A.- recover? 

If  prize  fights  were  illegal  in  the  jurisdiction  in  which  the  fight 
took  place  the  action  could  be  maintained..  Ordinarily  consent  is 
a  good  defense,  but  the  law  will  ignore  it,  if  the  act  consented  to  be 
illegal.  Either  A.  or  B.  could,  therefore,  sue.  Cooley  on  Torts, 
162;  Bishop  on  Non-Contr.  Law,  §  196. 

Bishop  objects  to  the  doctrine  of  consent  not  being  a  defense  In  civil 
cases,  even  when  the  act  is  illegal.  He  agrees  that  In  criminal  prosecu- 
tions it  should  be  no  defense,  but.  argues  strongly  that  where  a  man 
is  suing  civilly  the  breach  of  the  peace  is  not  under  consideration,  and 
that  the  man  who  has  consented  should  not  afterwards  recover. 
Bishop  on  Non.-Contr.  Law,  §  196. 

11.  A.  sues  B.,  on  the  ground  that  B.  has  seduced  her.     Is 
consent  a  good  defense? 

In  the  case  of  seduction,  consent  is  a  good  defense.  The  ex- 
planation of  this  is  historical.  At  common  law,  such  sexual  inter- 
course was  not  treated  as  a  crime.  In  many  States  this  has  been 
changed  by  statute,  and  a  woman  is  given  a  right  of  action.  Ham- 
ilton "v.  Lomax,  26  Barb.  (N.  Y.)  615. 

12.  A.,  being  told  that  he  is  legally  bound  to  submit  to  a  physi- 
cal examination,  does  so.     It  later  appears  that  he  was  not  so 
bound.     If  he  sues  the  examiner  for  assault,  is  his  consent  a 
good  defense  ? 

It  would  be.  Consent  given  under  mistake  of  law  is  still  con- 
sent. Force  or  fear  of  violence  is  necessary  to  give  a  right  of  ac- 
tioh.  Latter  v.  Braddell,  50  L.  J.  Com.  Law  (N.  S.,  Part  2),  448 

and  166. 

c.  Accident. 

18.  A.,  while  using  a  gun  in  self-defense,  accidentally  shot 
B.,  who  was  standing  by.  Can  B.  'recover  ? 

B.  could  not  recover,  if  A.  were  not  negligent.  An  accident 
means  in  law  that  which  is  unavoidable  by  the  use  of  ordinary 
caution  and  skill.  Morris  v.  Platt,  32  Conn.  75-80,  84. 

14.  A.,  while  separating  two  fighting  dogs,  struck  B.,  without 
negligence.  A.  was  under  no  duty  to  separate  the  dogs.  Can 
B.  recover? 

Here  A.  was  doing  something  that  he  might  equally  well  have  let 
alone,  but  the  act  being  lawful,  he  is  not,  even  in  that  case,  held 
to  extraordinary  care.  A.  is  only  held  to  "  the  kind  and  degree  of 
care  reasonably  necessary  to  the  exigency."  Brown  v.  Kendall,  b 
CuBh.  (Mass.)  292,  297. 


432  QUESTIONS  AND  ANSWEKS. 

d.    Duress. 

15.  A.  is  pushed  through  B/s  window  by  a  third  party.     Can 
B.  sue  A.?     Suppose  A.  breaks  the  window,  on  being  threatened 
with  physical  violence  if  he  does  not? 

A.  would  not  be  liable  in  the  first  case,  but  would  be  in  the 
second.  There  is  no  duress,  unless  physical  force  is  applied. 

"  That  is  a  man's  act  which  he  wills  to  do,  exercising  a  choice 
between  acting  and  forbearing,  and  the  strongest  moral  compulsion 
still  leaves  freedom  of  such  choice."  Clerk  &  Lind.  on  Torts  (2d 
ed.),  7. 

Duress  is  more  of  a  defense  in  criminal  law.  There  is  sur- 
prisingly little  authority  on  the  subject  in  torts. 

e.     Self -Defense  —  Short   of   Endangering   Life. 

16.  A.  had  threatened  to  kill  B.,  and  had  made  one  attempt  to 
do  so.     B.,  knowing  of  the  threat,  shot  and  killed  A.    the  first 
time  he  saw  him.     Was  the  plea  of  self-defense  good? 

Previous  threats  or  acts,  no  matter  how  violent,  will  not  justify 
an  assault.  "  To  excuse  a  homicide,  the  danger  of  life,  or  great 
bodily  injury,  must  either  be  real,  or  honestly  believed  to  be  so,  at 
the  time,  and  upon  sufficient  grounds."  Hippy  v.  State,  2  Head 
(Tenn.),  217;  Shorter  v.  People,  2  N.  Y.  193,  197. 

17.  Counsel  for  defendant  asked  court  to  charge  that  defend- 
ant had  a  right  to'strike  if  he  actually  believed  that  the  plaintiff 
was  going  to  strike  first.     Counsel  for  plaintiff  asked  for  a 
charge  that  defendant  had  no  right  to  strike  unless  he  was  actu- 
ally in  danger.     Which  charge  should  be  allowed? 

Neither  charge  would  be  correct.  The  first  charge  does  not 
state  that  the  belief  was  reasonable.  Shorter  v.  People,  2  N.  Y . 
]93,  197,  201;  State  v.  Bryson,  Harrigan  &  Thompson's  Cases,  249. 

The  second  charge  would  deprive  a  man  of  the  right  of  striking, 
when  he  had  reasonable  grounds  to  believe  that  he  was  in  danger. 
Self-defense  would  be  of  no  value  if  a  man  had  to  find  out  ab- 
solutely whether  he  was  in  danger  or  not.  Shorter  v.  People,  2  N. 
Y.  193,  201. 

An  impending  blow  need  not  be  struck  to  give  a  right  of  self- 
defense;  it  is  sufficient  if  there  is  a  threatened  evil,  or  one  which 
appears  as  if  it  were  ready  to  fall.  Shorter  v.  People,  supra. 

18.  It  was  argued  by  counsel  that  when  defendant  was  at- 
tacked he  should  have  retreated,  rather  than  have  met  force,  with 
force.     Is  the  argument  sound? 

No.  "\V  hen  attacked,  a  man  need  only  retreat  to  avoid  killing 
his  assailant.  In  other  cases  he  may  return  blow  for  blow,  and  is 


TORTS.  433 

only  liable  for  unnecessary  force.    State  v.  Sherman,  16  R.  I.  631; 
•Cooley  on  Torts,  p.  165. 

19.  A.  caught  B.'s  horse  by  the  bridle,  without  intending  to 
injure  B.,  and  B.  struck  him.     Was  B.  acting  in  self-defense? 

Yes.  A  man  has  a  right  to  move,  as  well  as  to  be  free  from  per- 
sonal violence.  B.  was  justified  in  endeavoring,  to  obtain  his  re- 
lease, using  no  more  violence  than  was  necessary  for  that  purpose. 
Howe  v.  Hawkins,  1  F.  &  F.  91. 

20.  A.  was  assaulted  by  B.,  but  used  excessive  force  in  repelling 
him,  and  B.  recovered  damages  for  his  injuries.     A.  now  sues 
for  B/s  assault  upon  him.     Can  he  recover? 

New  York  holds  that  if  one  party  has  already  recovered,  the 
other  is  barred.  Elliot  v.  Brown,  2  Wend.  (N.  Y.)  497.  See 
Cooley  on  Torts,  165,  criticising  New  York  doctrine. 

New  Hampshire  holds  that  it  is  the  same  as  if  there  were  two 
assaults  at  different  times.  Vermont  supports  this  view.  The 
assaulted  party  recovers  for  the  assault  and  battery  first  committed 
upon  him,  and  the  assailant  recovers  for  the  excess  of  force  used 
beyond  what  was  necessary  for  self-defense.  Dole  v.  Erskine,  35 
N.  H.  503,  510;  Cade  v.  McFarland,  48  Vt.  47. 

See  also  Bishop  on  Non-Contr.  Law,  §  200. 

f .    In  Protection  of  Property  —  Short  of  Endangering  Life. 

21.  A.  entered  B.'s  land  Quietly,  and  B.,  without  warning 
him,  put  him  off  the  land  with  appropriate  force.     Would  A. 
have  a  right  of  action? 

Yes.  When  a  man  enters  quietly,  he  must  be  warned  before 
force  can  be  used  of  any  kind,  and  after  a  warning,  the  owner  must 
begin  with  the  least  force  appropriate.  If  a  man  enters  with  force, 
however,  there  is  no  need  of  a  warning.  Green  v.  Goddard,  2  Salk. 
641:  Comm.  v.  Clark,  2  Met.  23;  Wall  v.  Lee,  34  N.  Y.  141. 

g.    "Use  of   Force  in   Defending   Person   or   Property  to   an   Extent 
Endangering  Human  Life. 

21a.  When  may  one,  in  defense  of  person  or  property,  use 
means  endangering  human  life? 

One  may  justify  the  killing  of  a  wrongdoer  to  prevent  the  com- 
mission of  a  felony  upon  his  own  person;  Shorter  v.  People,  2  N.  Y. 
193;  or  property;  1  Bishop  on  Criminal  Law  (7th  ed.),  §§  853,  857: 
875:  or  that  of  another;  1  Bishop,  supra,  §  877;  Regina  v.  Rose, 
15  Cox,  C.  C.  540;  Cooper's  case,  Croke  Car.  544;  People  v.  Cook. 
39  Mich.  236:  if  under  the  existing  circumstances  he  believes,  on 
reasonable  grounds,  that  that  is  the  only  way  to  prevent  it. 

See  Criminal  Law,  Ques.  4. 
28 


434  QUESTIONS  AND  ANSWEES. 

If  he  is  attacked,  however,  outside  of  his  own  house,  he  cannot 
take  the  life  of  his  assailant  unless  he  has  retreated  "  to  a  wall  or 
ditch  ",  provided  he  can  do  so  in  the  course  of  the  combat  without 
endangering  his  own  life.  State  v.  Donnelly,  69  Iowa,  705;  Stoffer 
v.  State,  15  Ohio  St.  47.  He  may  kill  without  retreating  if  under 
the  existing  circumstances  he  had  reasonable  grounds  for  believing 
there  was  imminent  danger  of  great  personal  injury  to  himself, 
and  did  in  fact  believe  it.  Shorter  v.  People,  supra;  State  v.  Don- 
nelly, supra. 

In  the  defense  of  real  or  personal  estate,  it  is  not  permissible, 
except  to  prevent  a  felony,  to  take  human  life.  The  disparity  be- 
tween the  wrong  and  the  remedy  is  too  great  and  if  the  property 
cannot  be  preserved  without  such  extreme  measures,  it  must  be 
yielded  up  and  recourse  had  to  the  ordinary  processes  of  law. 
Commonwealth  v.  Donahue,  148  Mass.  529;  State  v.  Zellers,  2  Halst. 
(N.  J.)  220;  1  Bishop,  supra,  §§  857,  861,  875,  876;  Ques.  16-21, 
supra. 

But  outside  of  all  of  these  rules  stands  the  case  of  the  defense  of 
the  dwelling-house.  A  man's  house  is  his  castle.  In  its  defense 
he  can  kill  one  who  attacks  it,  without  retreating,  and  whether  he 
owns  the  house  or  is  merely  a  sojourner  therein.  Cooper's  Case, 
supra;  State  v.  Patterson,  45  Vt.  308;  1  Bishop,  supra,  §§  858, 
859,  877. 

h.     Becaption  of  Personalty. 

22.  A.  has  been  in  peaceable  possession,  under  bona  fide  claim 
of  title,  but  the  property  in  fact  belongs  to  B.  Has  B.  a  right 
of  forcible  recaption? 

"Where  the  possession  has  been  peaceable,  there  is  a  conflict  in 
authority.  England  seems  to  allow  force  in  such  a  case.  Blades  v. 
Higgs,  30  L.  J.  Cas.  Crim.  Law  (Part  2),  347.  Sterling  v.  Xarden, 
51  N.  H.  2-17,  accord.  The  American  authority,  however,  tends 
to  the  other  view.  McLeod  v.  Jones,  105  Mass.  403,  405;  Richard- 
son v.  Anthony,  12  Vt.  273;  Stephenson  v.  Little,  10  Mich.  433. 

It  would  seem,  on  principle,  that  a  compromise  would  be  best,  allow- 
ing forcible  recaption  (1)  when  the  other  party  was  not  holding  under 
bona  fide  claim  of  right  as  in  case  of  a  purchaser  from  a  thief,  with 
notice ;  or  (2)  when  the  owner  will  lose  his  property,  if  recaption  is  not 
allowed,  as  where  the  property  is  being  taken  out  of  the  jurisdiction  and 
a  legal  process  will  be  too  late. 

The  law  is  settled  that  the  rightful  owner  may  retake  his  goods  if 
he  does  not  have  to  use  force,  and  may  use  force  if  the  recaption  is 
immediate.  Commonwealth  v.  Donahue.  148  Mass.  520,  and  cases  above 
cited.  The  owner  is  always  liable  for  excessive  force,  however.  Com- 
monwealth v.  Donahue,  ante. 


TORTS.  435 

r 

1.     Use  of  Force  to  Regain  Realty. 

23.  A.'s  tenant,  on  expiration  of  term,  refused  to  quit.     A. 
put  him  out  by  force.     Has  the  tenant  a  right  of  action? 

Three  views  'have  been  taken  on  this  point. 

1.  The  tenant  may  not  only  recover  for  personal  injury,  but  may 
also  maintain  trespass  quare  clausum  fregit,  against  the  owner. 
Hillary  v.  Gay,  6  Car.  &  P.  284. 

2.  The  tenant  may  not  maintain  trespass    quare  claitsum,  but 
may  maintain  trespass  for  force  to  person    and  damages  to  goods. 
Newton  v.  Harland,  1  Man.  &  Gr.  644. 

3.  The  tenant  may  maintain  an  action  for  assault  and  battery, 
but  he  is  not  entitled  to  damages  for  the  expulsion,  when  he  is  a 
tenant  at  will.     Pollen  v.  Brewer,  7  C.  B.  Eep.  (N.  S.)  371. 

Either  the  ilrst  or  the  third  view  must  be  adopted.  The  second 
view  is  untenable,  as  the  expulsion  and  entry  are  parts  of  the 
same  act.  In  England  the  authority  is  distinctly  in  favor  of  the 
third  view.  In  the  United  States  there  is  a  conflict  of  authority, 
but  the  decisions  are  tending  against  the  English  view,  and  in 
favor  of  the  person  forcibly  ejected.  Mosseller  v.  Deaver,  19  Am. 
St.  Eep.  540,  note,  543-547.  The  American  view  seems  right. 
Private  war  ought  not  to  be  encouraged  as  a  substitute  for  legal 
proceedings. 

It  Is  not  -advisable  to  use  force,  even  in  States  where  the  English  rule 
is  followed,  as  action  will  usually  be  brought  for  excessive  force.  But 
in  almost  every  State  there  is  a  summary  proceeding,  under  the  Land- 
lord aucl  Tenant  Act.  which  will  compel  the  tenant  to  appear  before  a 
justice  and  show  cause  why  he  should  not  be  put  out,  and,  if  the  tenant 
appeals,  he  has  to  give  security  for  rent  so  that  the  landlord  is  secure. 

If  a  landlord  gets  into  the  premises  peaceably,  there  is  conflict  of  au- 
thority whether  he  can  then  use  force  or  not.  Cooley  on  Torts,  322-327. 

24.  ~\Yhat  is  a  forcible  entry? 

There  must  be  either  actual  physical  force  used  in  and  on  the 
premises  (the  force  must  be  more  than  technical),  or  the  force 
must  be  directed  or  threatened  to  be  directed  against  the  person 
of  the  tenant.  Butts  v.  Voorhees,  13  N.  J.  Law,  13;  Mason  v. 
Powell,  38  X.  J.  Law,  576. 

J.   Liability  of  Vendor  of  Chattels  for  Injuries  to  Other  Parties  Than 
His  Immediate  Vendee,  but  Caused  by  His  Negligence. 

25.  A.,  a  wholesale  druggist,  sold  belladonna,  labeled  as  dande- 
lion.    After  several  resales,  B.  purchased  it,  and  C.  used  it  and 
was  injured.     Can  C.  recover? 

Yes.     Although  A.  did  not  contract  with  C.,  he  owed  him  a 
duty,  provided  that  he  was  of  the  class  of  persons  who  would  nat 
iirally  use  the  article  sold.     In  Thomas  v.  Winchester,  6  X.  \  .  397, 


43G  QUESTIONS  AND  ANSWERS. 

the  court  seems  to  limit  the  decision  to  the  case  of  "  deadly " 
medicines.  See  Loop  v.  Litchfield,  42  N.  Y.  351.  But  this  seems 
weak  reasoning.  The  fact  that  one  medicine  is  less  dangerous 
than  another  is  no  reason  for  limiting  the  class  of  persons  to  whom 
the  duty  of  care  is  due.  Clerk  &  Lind.  on  Torts  (2d  ed.),  401; 
Blood  Balm  Co.  v.  Cooper,  83  Ga..  457;  Schubert  v.  J.  E.  Clark 
Co.,  51  N.  TV.  Bep.  (Minn.),  1103. 

In  general  to  enable  any  one  but  the  first  vendee  to  recover,  it  must 
appear: 

1.  That  the  defendant  sent  the  article  out  with  a  negligent  misrepre- 
sentation as  to  its  nature  or  fitness. 

2.  That  the  plaintiff  used  the  article,  relying  upon  this  misrepre- 
sentation. 

3.  That  plaintiff  acted  reasonably  in  so  relying. 

4.  That  the  plaintiff  used  the  articles  in  a  manner  and  for  a  purpose 
intended  by  the  defendant,  or  which  the  defendant  ought  to  have  con- 
templated as  probable. 

5.  That  plaintiff,  even  though  not  specifically  in  defendant's   mind 
when  he  sold  the  article,  was  one  of  the  class  of  persons  by  whom  he 
intended  the  article  to  be  used  or  whom  he  ought  reasonably  to  have 
contemplated  as  likely  to  use  it. 

6.  That  there  was  no  intervening  negligence  of  third   persons   or  con- 
tributory negligence  of  the  plaintiff   breaking  the  casual  connection 
between  the  defendant's  negligence  and  plaintiff's  damage. 

Curtin  v.  Somerset,  140  Penn.  St.  70,  77.  Compare  Losee  v.  Clute,  51 
N.  Y.  494;  Savings  Bk.  v.  Ward,  100  U.  S.  195;  Heaven  v.  Fender,  L.  R. 
11  Q.  B.  Div.  503. 

k.     Duty  of  Care  on  Part  of  Occupier  of  Land  or  Buildings. 
1.    TOWARDS   PERSONS    ON    HIGHWAY   ADJACENT. 

26.  A.  dug  a  hole  in  his  land,  twenty  feet  from  the  highway. 
B.  fell  into  it,  having  accidentally  deviated  from  the  road.  Un- 
der what  condition  can  he  recover? 

On  principle  B.  could  recover  if  the  hole  was  dangerous  to  a 
man  using  ordinary  care,  the  distance  from  the  street  not  being  the 
test.  Xorwich  v.  Breed,  30  Conn.  535.  But  perhaps  on  authority 
the  excavation  must  substantially  adjoin  the  highway.  Hurdcastle 
v.  South  Yorkshire  E.  E.  Co.,  4  H.  &N.  67,  74;'Hounsell  v.  Smyth, 
7  C.  B.  (X.  S.)  731,  742. 

2.    TOWARDS  A   TRESPASSER. 

26a.  A.'s  horse  trespassed  on  a  railroad  track  and  was  in- 
jured. The  engineer  was  negligent  after  seeing  the  horse.  Can 
A.  recover? 

A.  should  be  allowed  to  recover  here. 

In  general,  there  is  no  duty  to  keep  land  in  condition  to  be 
trespassed  upon.  Lary  v.  Cleveland,  etc.,  E.  E.  Co.,  78  Irfd.  323. 


TORTS.  437 

'And  probably  there  is  no  duty  to  warn  a  trespasser  of  dangers  not 
readily  apparent.  Cooley  on  Torts,  660.  But  after  the  presence 
of  the  trespasser  is  known,  the  owner  must  take  reasonable  care. 
Rockford,  etc.,  R,  R.  Co.  v.  Rafferty,  73  111.  57;  Fritz  v.  R.  R.  Co., 
22  Minn.  404;  Darling  v.  Boston,  etc.,  R.  R.  Co.,  121  Mass.  118. 
There  is  a  conflict  of  authority  as  to  whether  the  owner  owes  any 
duty  to  a  trespasser,  when  his  presence  is  not  known.  The  Ohio 
court  would  say  that  a  railroad  company  must  use  ordinary  care  in 
keeping  a  lookout  for  trespassers.  R.  R.  Co.  v.  Smith,  22  Ohio 
St.  227.  Contra,  R.  R.  Co.  v.  Hummell,  44  Penn.  St.  375.  See 
Kay  v.  Penn.  R.  R.  Co.,  65  Penn.  St.  269,  275. 


3.    TOWARDS    LICENSEES  AND   INVITED   PERSONS. 

27.  A.,  in  attending  a  regular  church  service,  was  injured  by 
the  defective  condition  of  the  grounds.  Could  he  recover? 

Recovery  should  be  allowed  here,  as  it  is  proper  to  treat  A.  as  an 
invited  guest.  Davis  v.  Central  Cong.  Soc.,  129  Mass.  367.  Under 
similar  facts  an  English  court  held  that  A.  was  a  mere  licensee,  and 
so  the  defendant  was  under  no  duty  to  keep  the  premises  in  order. 
Southcote  v.  Stanley,  1  H.  &  N.  247.  The  American  view  seems 
better,  that  the  occupier  of  land  owes  a  duty  of  care  to  a  guest. 

The  general  law  may  be  summarized  as  follows: 

1.  The  occupant  is  under  no  duty  to  have  his  land  In  a  safe  condition 
for  a  licensee.    Hounsell  v.  Smyth.  7  C.  B.  (N.  S.)  731,  743;  Vanderbeck 
v.  Hendry,  34  N.  J.  Law,  467,  472. 

2.  The  occupant,  after  giving  permission,  owes  a  duty  not  to  make 
land  more  dangerous,  without  giving  notice,  especially  if  dangers  are 
concealed.    Gautret  v.  Egerton,  L.  R.  2  C.  P.  371,  375;  Kay  v.  Penn. 
R.  R.  Co.,  65  Penn.  St  269,  273. 

3.  The  occupant  owes  a  duty  to  warn  licensee  of  concealed  dangers 
existing  at  time  of  permission,   and  known  to  occupant.    Foulkes  v. 
R.  R.  Co.,  5  C.  P.  D.  157;  Gautret  v.  Egerton,  supra;  White  v.  France, 
2  C.  P.  D.  308. 

4.  The  occupant  is  not  liable  for  failure  to  use  reasonable  care  to  as- 
certain whether  or  not  there  are  any  such  dangers.    Sullivan  v.  Waters. 
14  Ir.  C.  L.  R.  460;  Eaton  v.  Winnie.  20  Mich.  156. 

5.  The  occupant  is  bound  to  give  the  licensee  benefit  of  such  knowl- 
edge as  he  has,  but  is  not  bound  to  acquire  knowledge.    Sullivan  v. 
Waters,  supra. 

6.  If  the  person  is  present  on  business  or  In  toe  exercise  of  a  legal 
right  the  occupier  owes  a  duty  to  warn  him  as  to  all  known  dangers 
and  those  which  should  have  been  known.    Indermaur  v.  Dames.  1..  R. 
1  C.  P.  274:  White  v.  France,  I>.  R.  2  C.  P.  D.  308:  Carleton  v.  Franconia 
Co..  99  Mass.  216.     See  also  Bigelow  on  Torts  (3d  ed.)  [Students'  »er.]), 
288-300;  Clerk  &  Lind.  on  Torts,  420. 


QUESTIONS  AND  ANSWERS. 

1.    Injuries  by  Animals. 

28.  A/s  menagerie  car  was  wrecked  in  a  railroad  accident,  and 
in  spite  of  every  effort  a  lion  escaped,  and  injured  B.     Can  B. 
recover ? 

B.  could  recover  here.  A  man  keeps  wild  animals  at  his  peril, 
and  when  injury  is  done  by  them,  he  is  liable,  even  if  they  have 
always  been  gentle  before.  If  the  injury  is  done  by  a  domestic 
animal,  the  plaintiff  must  show  that  the  defendant  knew  of  the 
tendency  of  the  animal  to  do  the  damage.  Filburn  v.  People's,  etc., 
Co.,  L.  R.  25  Q.  B.  Div.  258. 

If  the  scienter  is  proved,  the  defendant  is  liable,  irrespective  of 
negligence.  Reynolds  v.  Hussey,  64  N.  H.  64;  Cooley  on  Torts, 
343. 

m.   Defamation. 

29.  Define  libel,  slander,  and  publication. 

Libel  is  defamatory  matter  addressed  to  the  eye. 
Slander  is  defamatory  matter  addressed  to  the  ear.     Addison  on 
Torts  (6th  Am.  ed.,  Baylies),  168. 

Slander  and  libel  differ  In  that: 

1.  Slander  is  a  civil  wrong  only,  but  libel  is  a  criminal  wrong  as 
well,  as  tending  to  provoke  a  breach  of  the  peace.    Addison  on  Torts 
(6th  Am.  ed.,  Baylies),  106. 

2.  Truth  is  always  a  defense  to  a  civil  suit  for  libel  or  slander.    Brad- 
ley v.  Heath,  12  Pick.  (Mass.)  163;  George  v.  Jennings,  4  Hun  (N.  Y.), 
66;  Root  v.  King,  7  Cow.  (X.  Y.)  613;  Mundy  v.  Wight,  26  Kan.  173. 
But  at  common  law,  in  a  criminal  suit  for  libel,  the  truth  is  no  de- 
fense.   State  v.  Burnham,  9  N.  H.  34;  Cooley  on  Torts,  207.    This  rule, 
however,  has  been  changed  in  many  States  by  statute.    See  Art  1, 
§  8,  N.  Y.  Constitution. 

3.  Spoken  words,  if  not  actionable  per  se,  are  actionable  only  on  proof 
of  special  damage;  Bassell  v.  Elmore,  48  N.  Y.  561;  Terwilliger  v.  Wands, 
17  N.  Y.  54;  but  written  words,  if  libelous,  are  under  some  circum- 
stances actionable  per  se.    Pollard  v.  Lyon,  91  U.   S.  225;  Cooley  on 
Torts,  205,  206. 

Publication  formerly  meant  writing,  but  now  also  includes  a 
speaking  of  the  communication.  This  publication  must  be  to  a 
third  person,  or  in  his  presence,  so  that  he  can  understand  it. 
Hail  v.  Fuller,  2  Hun  (N.  Y.),  519;  Kiene  v.  Ruff,  1  Iowa,  482; 
Mielenz  v.  Quasdorf,  68  id.  726;  Miller  v.  Butler,  6  Gush.  (Mass.) 
71.  There  is  no  action  for  writing  libelous  matter  to  the  man 
himself.  Spaits  v.  Poundstone,  87  Ind.  522,  524;  Sheffill  v.  Van 
Deusen,  13  Gray  (Mass.),  304.  But  where  two  persons  compose 
the  letter  and  mail  it,  the  rule  is  otherwise.  Miller  v.  Butler,  6 
Cush.  (Mass.)  71. 


TOHTS.  439 

30.  What  classes  of  spoken  words  are  actionable  per  sef 

Of  the  five  classes  of  slander,  there  are  four  classes  which  are  ac- 
tionable per  se: 

"  Oral  slander,  as  a  cause  of  action,  may  be  divided  into  five 
•classes,  as  follows:  (1)  Words  falsely  spoken  of  a  person,  which 
impute  to  the  party  the  commission  of  some  criminal  offense,  in- 
volving moral  turpitude,  for  which  the  party,  if  the  charge  be  true, 
may  be  indicted  and  punished;  (2)  words  falsely  spoken  of  a  person 
which  impute  that  the  party  is  infected  with  some  contagious  dis- 
ease, where,  if  the  charge  is  true,  it  would  exclude  the  party  from 
society;  or  (3)  defamatory  words  falsely  spoken  of  a  person  which 
impute  to  the  party  unfitness  to  perform  the  duties  of  an  office  or 
employment  of  profit,  or  the  want  of  integrity  in  the  discharge  of 
the  duties  of  such  an  office-  or  employment;  (4)  defamatory  words 
falsely  spoken  of  a  party  which  prejudice  such  party  in  his  or  her 
profession  or  trade;  (5)  defamatory  words  falsely  spoken  of  a  person, 
which,  though  not  in  themselves  actionable,  occasion  the  party 
special  damage."  Clifford,  J.,  in  Pollard  v.  Lyon,  91  U.  S.  225,  226. 

31.  What  is  necessary  to  constitute  special  damage? 

1.  The  damage  must  occur  through  the  action  of  a  third  person, 
as  a  result  of  the  defamation. 

2.  It  must  be  the  loss  of  a  temporal  benefit  of  some  pecuniary 
value,  which  would  otherwise  have  been  conferred  upon  the  plain- 
tiff, even  though  gratuitously. 

3.  The  defamation  must  be  the  cause  of  the  damage  in  the  legal 
sense.     Gough  v.  Goldsmith,  44  Wis.  262,  264;  Shutleff  v.  Parker, 
130  Mass.  293,  297. 

4.  Quaere.  Can  an  action  be  maintained  for  special  damage,  by 
reason  of  false  words  not  defamatory  in  their  nature  (as  that  a  man 
is  a  Democrat),  but  spoken  to  injure,  and  from  which  injury  arises? 
It  would  seem  that  the  action  should  be  allowed.     Lynch  v.  Knight, 
9  H.  L.  C.  577,  at  p.  600.     If  there  was  no  intent  to  injure  in  such 
a  case,  recovery  has  been  refused.     Miller  v.  David,  L.  R.  9  C.  P. 
118,126. 

32.  A.  made  a  defamatory  statement  in  regard  to  B.,but  for 
i'he  express  purpose  of  benefiting  him.     Can  B.  recover? 

Yes.  Malice,  in  its  legal  sense,  has  no  moral  element.  It  means 
simply  a  wrongful  act  done  intentionally,  and  without  any  just 
caui  The  word  is  misleading.  Addison  on  Torts  (6th  ed.,  Bay- 
lies). 180;  6  Am.  L.  R.  593,  609-610. 

33    What  are  ''privileged  communications" 
Privileged  communications,  in  the  law  of  libel  and  slander  are 
defamatory  communications  held  excusable   because  made  m  t 


440  QUESTIONS  AND  ANSWERS. 

performance  of  some  legal,  moral,  or  social  duty,  or  the  legitimate 
protection  of  one's  business  interests,  or  for  other  like  causes.  They 
axe  of  two  classes: 

1.  Those  absolutely  privileged. 

2.  Those  conditionally  privileged. 

In  the  first  class  the  privilege  exists,  even  though  the  statements 
be  made  with  express  malice.  This  includes  statements,  whether 
written  or  oral,  made  in  legislative  and  judicial  proceedings.  Garr  v 
Selden,  4  N.  Y.  91.  But  the  statement  must  be  pertinent  and  ma- 
terial to  the  issue.  Moore  v.  Bank,  123  N.  Y.  420;  McLaughlin  v. 
Cowley,'131  Mass.  70;  Miner  v.  Detroit  Post,  49  Mich.  358,  364. 
Moreover,  a  witness  or  counsel  enjoys  this  absolute  privilege  only 
if  he  believed  the  statement  to  be  relevant.  Smith  v.  Howard,  28- 
Iowa,  51,  55;  White  v.  Carroll,  42  N.  Y.  161,  166. 

The  second  class  includes  such  statements  as  those  made  by  an 
employee  to  his  principal  in  the  line  of  business  duty  or  those  made 
in  response  to  inquiries  regarding  the  character  of  a  servant.  Child 
v.  Affleck,  9  B.  &  C.  403;  Lewis  v.  Chapman,  16  N.  Y.  369;  How- 
land  v.  Blake  Co.,  156  Mass.  543.  In  this  class,  if  actual  malice 
can  be  proved  it  does  away  with  the  privilege.  Addison  on  Torts 
(6th  ed.,  Baylies),  181-184;  Hamilton  v.  Eno,  81  N.  Y.  116,  125. 
In  case  of  a  candidate  for  public  office,  see  State  v.  Balch,  31  Kan. 
465. 


34.  A.,  the  defendant,  wrote  defamatory  statements  concerning 
the  plaintiff,  B.,  to  X.,  under  circumstances  which  made  the  pub- 
lication of  the  letter  to  X.  privileged.     By  mistake  the  letter  was 
placed  in  the  wrong  envelope  and  sent  to  Y.,  who  read  it.     Has  B. 
a  cause  of  action  against  A.  for  libel? 

No.  The  letter,  in  its  inception,  being  privileged  the  legal  im- 
plication of  malice  is.  rebutted,  and  in  the  absence  of  malice  in  fact 
on  the  part  of  the  defendant,  the  publication  to  Y.,  though  made 
through  the  negligence  of  the  defendant,  was  privileged  also. 
Tompson  v.  Dashwood,  L.  R.  11  Q.  B.  Div.  43. 

35.  What  is  "  fair  comment  "  ? 

Fair  comment  is,  in  effect,  a  plea  that  the  statement  is  privileged. 
Clerk  &  Lind.  on  Torts  (2d  ed.),  516,  530. 

The  subjects  of  fair  comment  are: 

1.  Matters  per  se  of  interest  to  the  public;  fair  and  true  reports 
of  judicial  and  legislative  proceedings. 

3.  Matters  laid  open  to  the  public  by  the  voluntary  act  of  the 
person  concerned,  such  as  fair  comment  and  criticism  of  the  acts  of 
public  men,  public  performances  or  published  writings  or  works  of 
art.  Addison  on  Torts  (6th  ed.,  Baylies),  1881;  Cooley  on  Torts, 
218. 


TORTS.  441 

n.     Malicious  Prosecution. 

36.  What  must  be  proved  to  sustain  an  action  for  malicious 
prosecution  ? 

To  sustain  an  action  for  malicious  prosecution  the  plaintiff  must 
prove  four  things: 

First,  that  the  defendant  instituted  or  instigated  the  prosecution. 

Second,  that  he  did  it  with  malice. 

Malice  means  actual  malice,  and  is  a  question  for  the  jury.  They 
may  find  its  existence  from  evidence  showing  lack  of  probable  cause, 
but  are  not  absolutely  bound  to  do  so. 

Third,  that  the  defendant  acted  without  reasonable  or  probable 
cause.  Whether  probable  cause  existed  or  not  is  a  question  of  law 
for  the  court,  if  the  facts  are  uncontro verted.  If  the  facts  are  uncer- 
tain or  in  dispute,  it  is  a  mixed  question  of  law  and  fact.  Farnam 
v.  Feeley,  56  N".  Y.  451.  Probable  cause  is  defined  as  a  reasonable 
ground  of  suspicion,  supported  by  circumstances  sufficiently  strong 
in  themselves  to  warrant  a  cautious  man  in  the  belief  that  the  per- 
son accused  is  guilty  of  the  offense  charged. 

Fourth,  that  the  previous  proceeding  has  terminated,  and  that 
the  termination  was  in  favor  of  the  defendant  therein,  who  is  plain- 
tiff in  the  second  suit.  Cardival  v.  Smith,  109  Mass.  158;  Brown 
v.  Randall,  36  Conn.  56;  Fay  v.  O'Neil,  36  K  Y.  11. 

III.     TORTS  AFFECTING  PERSONAL  LIBERTY. 

a.    Imprisonment. 

37.  B.,  a  tax  collector,  told  C.  that  he  arrested  her,  knowing 
tuat  she  would  not  pay  otherwise.     B.  had  no  right  to  make  an 
arrest.     C.  paid  and  sues  for  false  imprisonment  ?     Can  she 
recover ? 

Yes.  There  need  be  no  actual  force  to  constitute  imprison- 
ment; words  are  sufficient  if  they  in  fact  impose  a  restraint  upon 
the  person.  It  is  enough  if  the  payment  was  made  under  con- 
straint. Pike  v.  Hanson,  9  N.  H.  491. 

38.  A.  stopped  B.,  on  a  foot-path,  and  told  him  that  he  could 
not  go  in  that  direction.     B.  sued  for  false  imprisonment.  Could 
he  recover? 

No.  A  prison  must  have  some  boundaries.  Blocking  progress 
in  one  direction  does  not  constitute  imprisonment.  Bird  v.  Jones, 
7  Q.  B.  Rep.  742,  744. 

b.    Arrest  Without  Warrant. 

30  A  was  arrested  without  a  warrant  by  B.,  a  policeman, 
who  had  reason  to  believe  that  A.  had  been  stealing. 


442  QUESTIONS  AND  ANSWEBS. 

recover  in  an  action  of  assault?     Suppose  B.  had  been  a  private 
person  ? 

A.  could  not  recover  in  an  action  against  the  policeman.  If  he 
has  reasonable  grounds  to  believe  that  a  felony  has  been  committed 
he  may  arrest  on  suspicion  merely,  though  no  felony  has  actually 
been  committed. 

Had  B.  been  a  private  person  he  would  only  be  protected  if  he 
could  show  not  only  that  he  had  reasonable  ground  of  suspicion,  but 
also  that  a  felony  had  actually  been  committed.  Burns  v.  Erben, 
40  N.  Y.  463;  Beckwith  v.  Philby,  6  B.  &  C.  635,  638;  Addison 
on  Torts  ((5th  ed.,  Baylies),  153. 

Any  one  may  arrest  without  a  warrant  to  prevent  the  commission  of 
a  felony.  Handcock  v.  Baker,  2  Bos.  &  Pul.  260. 

The  fact  that,  in  any  case,  there  was  time  to  get  a  warrant  does  not 
take  away  the  right  to  arrest  without  one.  Cooley  on  Torts,  174. 

40.  Suppose,  in  the  question  above,  A.   had  actually  been  com- 
mitting a  misdemeanor? 

Neither  an  officer  nor  a  private  person  can  arrest  for  a  past  mis- 
demeanor, without  a  warrant.  Both  can  arrest  for  a  misdemeanor 
which  is  being  committed,  provided  it  is  also  a  breach  of  the  peace. 
If  not,  no  arrest  without  a  warrant  is  allowed.  Booth  v.  Hanley,  2 
Car.  &  P.  288;  1  Bishop  on  Criminal  Procedure  (4th  ed.),  §§  167, 
169-171. 

IV.     TOETS  AFFECTING  EEALTY. 
a.    Trespass. 

41.  A.  cuts  grass  on  B.'s  land,  honestly  thinking  that  he  is  on 
his  own  land.     Is  his  honesty  a  defense  to  an  action  of  trespass? 

No.  The  cutting  was  intentional,  and  the  fact  that  A.  did  not 
mean  to  trespass  makes  no  difference.  In  such  cases  a  man  acts  #t 
his  peril.  Basely  v.  Clarkson,  3  Levinz,  37. 

42.  A.'s  cow  was  loosed  by  B.  and  trespassed  upon  C.'s  land, 
with  no  fault  on  A.'s  part.     Is  A.  liable? 

Yes.  As  B:  did  not  actually  drive  the  cow  upon  C.'s  land,  A. 
would  be  liable.  Noyes  v.  Colby,  30  N.  H.  143, 154. 

As  a  general  rule  the  owner  is  absolutely  liable  for  such  injury  done 
by  animals  which  are  the  subject  of  ownership,  and  which  are  by  nature 
likely  to  stray,  and  likely  to-  do  damage  while  straying,  unless  he  can 
show  that  nis  neigh oor  was  bound  to  fence,  and  had  failed  so  to  do. 
Addison  on  Torts  (6th  ed..  Baylies).  128. 

If  an  animal,  belonging  to  a  class  not  likely  to  do  damage,  has  a  pro- 
pensity to  do  damage,  the  general  rule  is  that  the  owner  is  liable,  after 


TOBTS.  443 

he  knows  of  it.    Campbell  v.  Brown,  19  Penn.  St.  359;  Kertschacke  v. 
Ludwig,  28  Wis.  430;  Brice  v.  Bauer,  108  N.  Y.  428. 

43.  A.  was  driving  an  ox  along  the  highway  when  it  escaped 
without  negligence  on  his  part  and  did  damage  to  B.'s  property. 
Js  A.  liable? 

No.  This  is  the  one  exception  to  the  absolute  liability  of  owners. 
There  is  less  chance  of  damage  in  such  a  case,  as  the  animal  will  be 
driven  off  at  once.  Moreover,  the  exception  is  "  absolutely  neces- 
sary for  the  conduct  of  the  ordinary  affairs  of  life."  Tillett  v. 
Ward,  10  Q.  B.  Div.  17. 

44.  A.'s  dog  enters  B.'s  land,  and  injures  B/s  crops.     Is  A. 
liable? 

Save  by  statute,  A.  would  not  be  liable  for  the  trespass  of  his  dog. 
Brown  v.  Giles,  1  Car.  &  P.  118;  Cooley  on  Torts,  341. 
The  general  reasons  for  this  are: 

1.  The  difficulty  of  restraining  dogs. 

2.  The  slightness  of  damage  done. 

3.  The  common  usage  not  to  restrain  them. 

4.  The  fact  that  they  are  not  considered  the  chattels  of  the 
owner,  so  far  as  to  be  subjects  of  larceny.  Read  v.  Edwards,  17  C.  B. 
(X.  S.)  245,  260-261,  per  Willes,  J.     Dogs  are  now  the  subject  of 
larceny  by  statute  in  most  States. 

If  the  dog  was  known  to  be  accustomed  to  do  a  certain  kind  of 
damage  the  owner  would  probably  be  liable.  Dictum  by  Nelson, 
C.  J.,  Brill  v.  Flagler,  23  Wend.  (N.  Y.)  354. 

b.    Necessity. 

45.  A.,  finding  the  road  blocked  by  a  fallen  tree,  drove  around 
it,  on  B.'s  land.     He  could  have  avoided  the  trespass  by  going 
a  mile  around.     Is  he  liable? 

A.  would  be  liable,  unless,  under  all  the  circumstances,  it  was  rea- 
sonable to  drive  on  B.'s  land.  He  cannot  go  on  merely  for  con- 
venience. Campbell  v.  Race,  7  Cush.  408,  413. 

It  has  been  said  that  where  one  knows  a  highway  is  blocked  and 
there  is  another  way  reasonably  available  to  him  he  must  go  this 
way  and  not  trespass  on  plaintiff's  property;  and  a  traveler  is  not 
found  to  remove  obstructions,  if  it  would  materially  delay  him. 
Morey  v.  Fitzgerald,  56  Vt.  487,  490. 

46.  A.  enters  B.'s  building  and  blows  it  up  to  prevent  the 
spread  of  fire  ?     Is  A.  liable  ? 

This  matter  is  generally  regulated  by  statute,  but  even  at  common 
law  a  private  person  may  destroy  property  to  prevent  the  spread  of 
fire,  if  the  damage  to  be  done  by  explosives  is  not  disproportionate 


444  QUESTIONS  AND  ANSWEES. 

to  that  to  be  avoided,  and  if  there  is  reasonable  ground  for  believ- 
ing that  the  fire  will  spread  without  such  destruction.  Surocco  v. 
Geary,  3  Cal.  69-73. 

Entry  is  also  justifiable  in  case  of  a  fireman,  policeman,  or  sheriff; 
to  build  a  division  fence;  or  to  prevent  the  spread  of  contagious- 
diseases.  Seavey  v.  Preble,  64  Me.  120. 

An  entry  to  save  property  from  damage  by  water  or  fire  is  also 
justifiable.  Proctor  v.  Adams,  113  Mass.  376. 

c.    Acting  at  Peril.    Duty  of  Insuring  Safety. 
47.  A.  built  a  reservoir  on  his  land,  and  with  no  negligence 
on  his  part,  the  water  escaped  and  injured  B.     Can  he  recover? 

By  the  law,  as  established  by  Fletcher  v.  Eylands,  he  could  re- 
cover. L.  R.  1  Exch.  265;  s.  c.,  L.  R.  3.  H.  L.  330.  Although,  in 
that  case,  the  facts  would  probably  have  warranted  a  finding  of  neg- 
ligence, the  case  was  decided  on  the  supposition  of  no  negligence. 
The  case  stands  for  the  point  that  the  person  who  brings  on  his- 
land,  for  his  own  purpose,  anything  which  will  be  dangerous  if  it 
escapes,  must  keep  it  in  at  his  peril  and  if  he  does  not  he  must  be 
held  liable  for  any  damage  which  occurs  as  the  natural  consequence 
of  its  escape. 

There  axe,  however,  two  exceptions  to  the  rule  in  the  English 
courts.  First,  where  the  escape  is  caused  by  the  act  of  God,  as  if 
the  reservoir  had  been  struck  by  lightning;  and,  second,  where 
the  damage  arises  from  the  wrongful  act  of  a  third  person.  Nich- 
ols v.  Marsland,  L.  R.  2  Ex.  Div.  1;  Box  v.  Jubb,  L.  R.  4  Ex.  Div.  76. 

The  argument  by  which  the  decision  of  Fletcher  v.  Rylands  is 
reached  seems  hardly  tenable.  The  analogies  used  are  exceptional,  or, 
as  in  the  case  of  an  innkeeper's  liability,  are  based  on  public  policy, 
and  no  attention  is  paid  to  the  opposing  analogies.  The  case  also- 
keeps  up  the  distinction  between  real  and  personal  property  which 
seems  illogical  and  should  be  allowed  to  die  a  natural  death.  If  dam- 
age is  done  to  a  person,  there  must  be  negligence  or  intent  to  injure, 
and  why  not  in  case  of  injury  to  realty?  Austin  on  Juris.  (5th  Eng.  ed.> 
57-58;  Clerk  &  Lind.  on  Torts,  341.  The  old  maxim,  "sic  utere 
tuo  tit  alienum  non  laedas,"  often  used  to  support  the  case,  does 
not  advance  the  argument  very  far.  After  "  laedas "  is  defined 
the  maxim  Is  of  no  further  use.  In  the  use  of  property,  damage 
is  often  done  legally.  The  question  is  whether  a  legal  right  has  been 
infringed.  The  maxim  "  determines  no  right  and  defines  no  obligation." 
Auburn,  etc.,  Flank  Road  Co.  v.  Douglass,  9  N.  Y.  444,  445-446.  See  £ 
Harv.  Law  Rev.  13-18. 

If  there  is  to  be  any  rule  in  the  direction  of  that  advanced  by  Black- 
burn, J.,  it  should  not  be  broader  than  to  hold  a  man  liable  where  he 
brings  anything  on  his  land  which  is  likely  to  escape,  and  likely  to  do 
damage  if  it  escapes.  At  present  there  is  a  tendency  to  restrict  liability 
Trhere  negligence  or  intent  is  absent. 


TORTS.  445 

The  rule  of  Fletcher  v.  Rylands  is  followed  In  Massachusetts  and 
Minnesota,  but  see  Smith  v.  Faxon,  156  Mass.  589,  597,  where  the 
former  decisions  seem  to  be  overruled  in  effect 

New  York,  New  Jersey  and  New  Hampshire  repudiate  the  rule.  Losee 
v.  Buchanan,  51  N.  Y.  476;  Marshall  v.  Wei  wood,  38  N.  J.  Law,  339,  341; 
Brown  v.  Collins,  53  N.  H.  442,  44(5.  The  New  Jersey  and  New  Hamp- 
shire cases  are  the  best  answers  to  the  English  case. 

d.    Liability  for  Fire  and  Explosives. 

48.  A.  set  fire  to  brush  on  his  land,  and  with  no  fault  on  his 
part,  B.'s  land  was  injured.     Is  A.  liable? 

No.  "Where  fire  is  set  for  lawful  purpose,  and  there  is  no  negli- 
gence, the  defendant  is  not  liable  in  this  country.  Bachelder  v. 
Heagan,  18  Me.  32.  In  England,  Fletcher  v.  Eylands  would  hold 
«  man  to  absolute  liability. 

49.  A.'s  powder-mill  blows  up,  and  B.  sues  for  damage.     A. 
proves  that  he  was  not  negligent.     Is  that  a  perfect  defense? 

No.  It  depends  upon  the  location  of  the  mill  whether  it  con- 
stitutes a  private  nuisance  or  not.  A  man  cannot  manufacture 
gunpowder  in  all  places,  however  careful  he  may  be,  and  the  jury 
is  to  say  whether  the  place  was  reasonable.  If  not,  A.  would  be 
liable  absolutely.  But  if  the  place  was  a  proper  one,  B.  would  have 
to  prove  negligence  before  he  could  recover.  Heeg  v.  Licht,  80 
X.  Y.  579. 

V.  TORTS  AFFECTING  PERSOXALTT. 
a.    Trespass. 

50.  A.'s  horse  was  tied  at  a  public  hitching-post.     B.  untied 
the  horse  to  make  room  for  his  own.     Is  B.  liable  in  trespass? 
Suppose  B.  had  acted  by  mistake,  thinking  it  was  his  horse? 

B.  would  be  liable  in  both  cases.  The  fact  that  he  had  an  equal 
right  to  the  post  originally  would  give  him  no  right  to  remove  A.'s 
horse.  Bruch  v.  Carter,  32  N".  J.  Law,  554.  Here,  as  in  other  cases 
in  trespass,  it  is  a  question  of  what  a  man  has  done,  not  what  he  in- 
tended. Hobart  v.  Hagget,  12  Me.  67. 

51.  A.'s  dog  had  been  worrying  B.'s  sheep,  and  B.  shot  him 
just  after  he  ran  out  of  the  pasture.     A.  sues  in  trespass.     Judg- 
ment for  >rhom? 

Judgment  would  be  for  A.  B.  cannot  kill  for  revenge,  but  only 
for  protection.  Wells  v.  Head,  4  Car.  &  P.  568. 

To  justify  the  killing  of  an  animal  that  must  also  be  the  only  rea- 
sonable  way  to  protect  the  property.  Livermore  v.  Batchelder,  141 
Mass.  179. 


446  QUESTIONS  AND  ANSWERS. 

52.  A.'s  cow  was  trespassing  on  B.'s  land,  and  B.  drove  her  off 
with  a  dog.     The  cow  was  injured.     Is  B.  liable? 

It  would  depend  upon  the  dog.  If  it  was  a  proper  dog  to  use  for 
such  a  purpose,  and  J3.  used  proper  diligence  in  recalling  him 
when  the  cow  was  driven  off,  he  would  not  be  liable.  Clark  v. 
Adams,  18  Vt.  425. 

b.   Conversion. 

53.  Define  conversion. 

Conversion  consists  in  any  unauthorized  dealing  with  the  goods 
of  another  by  one  who  is  actually,  or  constructively,  in  possession, 
whereby  any  one  of  three  things  happens.  Either: 

1.  The  nature  or  quality  of  the  goods  is  essentially  altered.  Dench 
v.  Walker,  14  Mass.  499;  Clerk  &  Lind.  on  Torts  (3d  ed.),  207. 

2.  The  person   having  the  right  of  possession  is  deprived  of  all 
substantial  use  of  the  goods  permanently,  or  for  an  indefinite  time. 
Clark  v.  Hideout,  39  N.  H.  238;  Spooner  v.  Holmes,  102  Mass.  503, 
506;  Spooner  v.  Manchester,  133  id.  270. 

3.  The  owner  is  deprived  of  all  substantial  use  of  the  goods  tem- 
porarily, or  even  momentarily,  by  one  acting  in   denial  of  the 
owner's  (i.  e.,  the  plaintiff's)  title  to  the  goods.     Bristol  v.  Burt, 
7  Johns.  (N.  Y.)  254;  Perham  v.  Coney,  117  Mass.  102;  (compare 
Spooner  v.  Manchester,  ante)',  M'Combie  v.  Davies,  6  East,  538; 
Cooley  on  Torts,  448. 

A  merely  negligent  injury  is  not  conversion.  Hawkins  v.  Hoff- 
man, 6  Hill,  586;  Packard  v.  Getman,  4  Wend.  613;  Mulgrave  v.  Og- 
den,  Cro.  Elizabeth,  219. 

But  the  fact  that  a  man  is  acting  &ona  fide  will  not  help  him  if  he 
actually  exercises  dominion  over  the  goods  of  another.  An  innocent 
purchase  from  a  thief  is  a  conversion.  Pease  v.  Smith,  61  N.  Y.  477. 

A  man  may  also  be  guilt}7  of  a  conversion  when  he  is  merely  acting 
as  the  agent  of  another.  Stephens  v.  Elwall,  4  M.  &  S.  259. 

In  Baldwin  v.  Cole,  6  Modern,  212,  Holt,  C.  J.,  said,  that  a  de- 
mind  and  a  refusal  would  alone  constitute  a  conversion,  but  that  has 
been  repeatedly  overruled  and  is  not  law.  Demand  and  refusal  can 
never  be  more  than  evidence  of  conversion,  and  not  even  that  if  the 
goods  are  not  actually  in  the  hands  of  the  party  of  whom  they  are  de- 
manded. Smith  v.  Young,  1  Camp.  439. 

54.  A.  converted  B.'s  goods,  and  then  brought  them  back  to  B., 
uninjured,  and  offered  to  return  them.     B.  refused  them.     Can 
he  still  sue  for  conversion?     Suppose  B.  had  accepted  them? 

A  right  of  action  once  vested  could  not  be  taken  away  by  an 
offer  to  return.  Carpenter  v.  Ins.  Co.,  22  Hun  (N.  Y.),  47.  And 
even  if  the  return  had  been  accepted,  B.  would  still  have  a  right 
of  action  and  the  return  would  only  go  in  mitigation  of  damages. 
Greenfield  Bk.  v.  Leavitt,  17  Pick. '(Mass.)  1. 


TOKTS.  447 

c.    Necessity. 

55.  A.,  being  a  passenger  in  a  boat,  threw  over  B.'s  qoods  to 
prevent  loss  of  life.     Is  A.  liable  for  the  loss? 

No.  One  acting  under  such  circumstances  has  a  good  defense 
Mouse's  Case,  12  Coke's  Eep.  63;  The  Gratitudine,  Rob.  Adm  196 
210;  Carver  on  Carriage  of  Goods  by  Sea  (2d  ed.),  §  15. 

VI.  TRESPASS  AB  INITIO. 
a.     Trespass  Affecting  the  Person. 

56.  A.  put  one  of  his  employees  off  his  premises,  using  ex- 
cessive force      The  jury  was  charged,  that  if  A.  used  more  force 
than  was  necessary,  he  became  a  trespasser  ab  initio.     Was  this 
correct ? 

No.  The  principle  of  trespass-  ab  initio  applies  only  to  acts  under 
a  special  and  particular  authority  given  by  law,  and  not  to  acts 
which  a  man  may  do  generally.  Esty  v.  Wilmot,  15  Gray,  168,  170. 

b.     Trespass  Affecting  Realty. 

57.  A.  entered  B.'s  land,  by  express  authority,  to  cut  wood. 
He  exceeded  his  authority,  and  B.  sues  him  as  a  trespasser  ab 
initio  for  the  entry,  and  all  the  damage  done.     Judgment  for 
whom? 

Judgment  should  be  given  for  A.  The  doctrine  of  trespass  ab 
initio  only  applies  when  authority  is  given  by  law,  as  where  an 
officer  enters  to  attach  property.  In  such  a  case  the  officer  must  not 
use  the  la.w  as  an  instrument  of  oppression  or  abuse  his  authority, 
but  must  conform  to  all  the  legal  regulations,  or  he  has  no  justifica- 
tion, even  for  the  entry.  But  when,  as  here,  there  is  an  express 
authority  or  an  authority  given  in  fact,  even  if  it  has  been  procured 
by  fraud,  a  defendant  is  only  liable  for  the  excess.  Jewell  v. 
Mahood,  44  N.  H.  474;  Allen  v.  Crofoot,  5  Wend.  (N.  Y.)  506. 

58.  A.,  being  a  guest  at  B.'s  inn,  stole  B.'s  goods.     Indict- 
ment was  for  entering  with  intent  to  steal.     Was  it  good? 

No.  The  doctrine  of  trespass  ab  initio  will  not  be  extended  to 
criminal  cases.  State  v.  Moore,  12  N.  H.  42,  45-49. 

59.  A.  refused  to  pay  for  a  meal  at  a  hotel. after  eating  it.     B. 
sues  him  as  a  trespasser  on  the  premises.     Can  he  recover? 

No.  Although  A.  is  held  to  enter  a  hotel  by  the  authority  of 
law.  and  a  guest  cannot  ordinarily  be  refused  admission,  still  it  is 
held  that  a,  mere  nonfeasance  is  not  such  a  violation  of  the  authority 
as  to  make  a  man  a  trespasser  ab  initio.  »Six  Carpenters'  Case,  8 
Coke's  Eep.  146;  Eoss  v.  Philbrick,  39  Me.  29. 


448  QUESTIONS  AND  ANSWERS. 

c.    Trespass  Affecting  Personalty. 

60.  A.  took  B.'s  horse  lawfully,  as  an  estray,  and  then  used 
him.     Has  B.  any  right  of  action? 

Yes.  He  could  sue  A.  as  a  trespasser  for  the  use  and  the  orig- 
inal taking.  Although  the  taking  was  lawful  the  subsequent  use  of 
the  horse  was  not,  and  would  make  A.  a  trespasser  ab  initio.  Oxley 
v.  Watts,  1  Term  Eep.  12. 

VII.     DEFENSE  AND  JUSTIFICATION. 

a.    Defense  That  Plaintiff  Was  a  Wrongdoer. 

61.  A.  and  B.  were  racing  on  the  highway,  contrary  to  statute, 
when  A.    intentionally  ran  into  B.     In  an  action  by  B.,  A. 
pleads  that  B.  was  a  wrongdoer,  and  so  is  barred.     Is  the  plea 
good?     Suppose  A.  had  simply  been  negligent? 

The  fact  that  a  man  is  acting  illegally  does  not  give  others  the 
right  to  treat  him  as  an  outlaw,  and  he  still  has  a  right  not  to  be 
intentionally  injured.  Welch  v.  Wesson,  6  Gray  (Mass.),  505. 

A.  would  also  be  liable  for  a  negligent  injury  to  B.,  unless  B.'s 
wrongdoing  was  the  proximate  cause  of  the  injury.  Spofford  v. 
Harlow,  3  Allen,  176. 

It  is  only  where  compliance  with  the  plaintiff's  request  would 
involve  the  affirmance  of  his  wrong  as  if  it  were  a  right,  that  hia 
suit  will  be  rejected.  Bishop  Non.-Contr.  Law,  §  59;  McGrath  v. 
Merwin,  112  Mass.  467.  But  where  the  wrongdoing  of  the  plaintiff 
simply  brought  him  into  a  position  where  the  injury  was  suffered, 
And  was  not  otherwise  a  cause  of  it,  he  can  recover.  White  v.  Lang, 
128  Mass.  598. 

b.    Justification.    Defendant  Acting  in  a  Judicial  Capacity. 

62.  Complaint  that  the  defendant,  acting  as  a  judge, 
maliciously  and  contrary  to  law,  decided  a  case  against  the 
plaintiff.  Demurrer.  Judgment  for  whom? 

Even  in  a  malicious  and  corrupt  decision  a  judge  only  renders 
himself  liable  to  impeachment.  Pratt  v.  Gardner,  2  Gush.  (Mass.) 
63.  Except  that  he  is  liable  for  a  refusal  to  grant  a  writ  of  habeas 
corpus,  if  good  cause  is  shown  on  the  face. 

It  would  make  a  difference,  however,  whether  the  case  was 
wrongly  decided  in  a  question  on  the  merits  or  on  the  jurisdiction. 

The  general  result  of  the  authorities  may  be  stated  as  follows: 

1.  When  a  judge,  acting  within  his  jurisdiction,  is  deciding  upon  the 
merits  of  a  case,  he  is  not  liable  for  errors  in  fact  or  in  law.    Bradley  v. 
Fisher,  13  Wall  (U.  S.)  335. 

2.  When  a  judge  is  deciding  whether  he  has  jurisdiction  or  not,  he  is 
not  liable  for  mistakes  in  fact  or  In  law,  unless  he  knew  or  ought  to 


TORTS.  449 

bare  known  that  he  had  no  Jurisdiction.  Grove  v.  Van  Duyne,  44  N.  J. 
Law,  654;  Cooley  on  Torts,  173,  n. 

There  is,  however,  considerable  conflict  of  authority  aa  to  the  second 
statement. 

Some  distinction  has  been  made  between  cases  where  a  Judge  acted 
in  excess  of  jurisdiction,  and  where  there  was  no  Jurisdiction  at  all, 
but  such  a  distinction  is  not  tenable.  The  same  distinction  has  also 
been  made  as  to  the  liability  of  judges  of  superior  and  inferior  courts, 
the  latter  being  the  more  strictly  held.  There  is  much  conflict  of  au- 
thority, but  such  a  distinction  has  no  foundation  In  principle.  Cooley 
on  Torts,  416.  An  equal  protection  should  be  extended  to  all  persons 
who  are  called  upon  to  act  in  a  judicial  capacity. 

o.      Justification.      That   Defendant  Was  an  Officer  Acting   Under 

Process. 

63.  //  an  officer  is  acting  under  process,  what  is  necessary  to 
constitute  a  perfect  justification? 

1.  He  must  be  an  officer  de  jure.    Short  v.  Symms,  150  Mass.  298. 

2.  He  must  have  in  his  possession  the  process  he  acts  upon.     Gal- 
liard  v.  Laxton,  2  B.  &  S.  363,  372. 

3.  He  must  rollow  the  directions  of  the  writ  or  statute  under 
which  he  proceeds.     Ross  v.  Philbrick,  39  Me.  29;  Smith  v.  Gates, 
21  Pick.  (Mass.)  55;  Sackrider  v.  McDonald,  10  Johns.  (N.  Y.)  253. 

4.  The  process  must  be  fair  on  its  face.  •  State  v.  Weed,  21  N.  H. 
263,  271. 

To  be  fair  on  its  face: 

(a)  The  process  must  issue  from  a  court  having  legal  power  to 
issue  process  in  such  cases. 

(b)  The  process  must  be  substantially  in  legal  form. 

(c)  The  process  must  contain  nothing  on  its  face  to  notify  the 
officer  that  it  was  issued  without  legal  authority.     Campbell  v.  Sher- 
man, 35  Wis.  103,  109;  Cooley  on  Torts,  460. 

If  all  these  points  exist  an  officer  is  protected,  even  though  from 
outside  sources  the  officer  knows  that  the  process  is  actually  void. 
€ooley  on  Torts,  46;  People  v.  Warren.  5  Hill  (N.  Y.),  440.  This 
seems  best,  as  such  officers  should  not  be  allowed  to  judge  in  such 
matters. 

64.  A.  has  goods  in  his  possession  which  are  supposed  to  be- 
long to  B.,  and  C.  calls  upon  a  sheriff  to  attach  them,  giving  him 
a  bond  of  indemnity.     A.  threatens  to  hold  the  goods  with  force 
-saying  that  they  are  his.     What  shall  the  sheriff  do? 

In  some  jurisdictions,  if  A.  actually  did  own  the  goods,  he  would 
foe  allowed  to  defend  them  by  the  use  of  force.  Commonwealth  v. 
Kennard.  8  Pick.  (Mass.)  133.  In  such  a  jurisdiction  the  sher- 
iff would  be  in  a  difficult  position,  as  he  must  either  act  and 
foe  attacked,  or  refrain  from  acting  and  be  sued  by  C.,  who  has 
29 


450  QUESTIONS  AND  ANSWERS. 

given  the  bond  of  indemnity.  Whether  or  not  force  can  be  used 
against  a  sheriff  in  such  a  case  must  depend  upon  the  jurisdiction,, 
but  as  a  matter  of  practice  certainly  it  would  seem  better  not  to  allow 
force,  as  a  man  is  not  likely  to  lose  his  property  by  having  a  sheriff 
take  it,  and  the  creditor's  bond  is  always  good  security.  See  State 
v.  Downer,  8  Vt.  424;  State  v.  Richardson.  38  N.  H.  208. 

65.  A  sheriff  acts  under  a  statute  which  is  afterwards  held 
unconstitutional.     Is  he  liable  for  his  acts? 

He  would  be  held  so  in  most  jurisdictions.  An  unconstitutional 
law  is  said  to  be  no  law.  Campbell  v.  Sherman,  35  Wis.  103;  Kelly 
v.  Bemis,  4  Gray  (Mass.),  83. 

Such  a  principle  is,  however,  very  severe,  and  may  in  time  be 
modified  so  as  to  hold  the  action  of  the  officer  voidable,  not  void. 
See  Henke  v.  McCord,  55  Iowa,  378;  Sessums  v.  Botts,  34  Tex.. 
335,  338. 

If  a  ministerial  officer  refuses  to  act  because  he  thinks  that  a 
statute  is  unconstitutional,  he  is  liable  for  such  refusal,  unless  the 
statute  is  in  fact  unconstitutional.  Clark  v.  Miller,  54  N.  Y.  528. 

VIII.  PEOXIMATE  CAUSE. 

66.  Through  the  negligence  of  the  A.  Co.,  B.'s  goods  were 
delayed  in  transportation,  and  while  so  delayed  were  damaged 
by  a  freshet.     But  /or  the  negligence  of  the  A.  Co.    the  goods 
would  not  have  been  where  they  could  be  injured.     Would  the  A. 
Co.  be  liable  for  the  damage? 

By  the  general  weight  of  authority  the  A.  Co.  would  not  be 
liable.  The  negligence  is  'held  not  to  be  the  proximate  cause  of  the 
damage.  Denny  v.  N.  Y.  C.  R.  Co.,  13  Gray,  481. 

Much  difficulty  has  been  experienced  in  framing  a  rule  to  determine 
when  a  cause  is  proximate.  The  most  widely  accepted  rule  at  present, 
which  is  applied  in  the  case  above,  is  that  a  man's  act  is  the  proximate 
cause  of  those  consequences  which  naturally  flow  from  it.  By  Pollock: 
"  Natural  and  probable  consequences  are  those  which  a  person  of 
average  competence  and  knowledge,  having  the  like  opportunities  of 
observation,  might  De  expected  to  foresee  as  likely  to  follow."  Pollock 
on  Torts  (2d  ed.),  p.  28.  This  :s  not  a  logical  definition,  but  a  guide  to 
common  sense,  Ib.,  p.  33. 

The  application  of  this  rule  does  not  require  that  the  damage  should 
have  been  foreseen  in  the  precise  form  in  which  it  happened.  It  is 
enough  that  the  result  was  natural.  Nor  is  the  causal  connection,  under 
the  rule,  broken  by  the  mere  intervention  of  ordinary  natural  forces. 
A  man  is  bound  to  foresee  an  ordinary  wind  or  rain.  Bevan  on  Negli- 
gence, 74  and  83. 

Another  rule  for  determining  liability  is  that  the  last  human  wrong- 
doer shall  be  liable.  "Wharton  on  Negligemce  (1st  ed.),  Appendix,  p. 


TORTS.  451 

823,  and  §§  86-97,  134-145;  Condict  v.  Grand  Trunk  B.  R.  Co.,  64  N.  Y. 
600,  604. 

Still  a  third  rule  was  advanced  in  Gilman  v.  Noyes,  57  N.  H.  627, 
631,  where  it  was  held  that  a  man  was  liable  if  ttfie  damage  would 
not  have  happened,  "  but  for "  his  act.  This  rule  has  been  justly 
criticised  in  that  it  would  make  "  everybody  responsible  for  every- 
thing." 

No  rule  has  yet  been  framed  which  will  meet  all  cases,  unless  it  be 
the  rule  of  Wardlaw,  J.,  in  Harrison  v.  Berkley,  1  Strobh.  L.  <S.  Car.) 
525,  where  he  says,  in  effect,  that  the  doer  is  responsible  for  natural 
results,  these  being  those  which  happen  without  an  extraordinary  con- 
Junction  of  natural  causes.  This  rule  acts  retrospectively.  If  the  result 
is  natural,  a  inau  would  be  held  for  it,  even  if  it  were  not  probable, 
as  where  a  man  intended  to  shoot  a  man,  who  was  at  a  distance  at  whicn 
it  was  most  improbable  that  he  could  hit  him.  In  such  a  case  the 
wrongdoer  would  undoubtedly  be  held,  but  this  result  could  not  be 
reached  by  the  natural  and  probable  consequence  rule. 

The  courts  apply  a  broader  rule  where  the  tortious  act  was  in- 
tentional, even  though  the  specific  result  which  followed  was  not 
intentional,  and  they  frequently  refuse  to  be  bound  by  its  limitations 
where  the  defendant's  act  was  specifically  forbidden  by  law  or  was 
immoral,  even  though  it  would  not  subject  him  to  a  criminal  prosecution. 

The  rule  of  holding  the  last  human  wrongdoer  is  objectionable,  in 
that  it  would  seriously  affect  business  enterprise  to  hold  a  man  in  such 
a  case  as  was  put  in  the  question.  This,  however,  was  done  in  Condict 
v.  Grand  Trunk  R.  R.  Co.,  54  N.  Y.  500.  The  rule  also  is  partial  as 
there  is  often  more  than  one  wrongdoer. 

IX.  NEGLIGENCE.  STANDARD  OF  CARE.  DEGREES  OF  NEGLIGENCE. 

67.  Cold  weather  of  unprecedented  severity  caused  the  defend- 
ant company's  water  pipes  to  burst.  Can  they  be  held  for  dam- 
ages done? 

No.  There  must  be  negligence  on  the  part  of  the  defendants  to 
render  them  liable.  Men  engaged  iu  ordinary  business  are  not  in- 
surers and  are  not  required  to  foresee  the  unprecedented. 

.  "  Negligence  is  the  omission  to  do  something  which  a  reasonable 
man,  guided  by  those  considerations  which  ordinarily  regulate  the  con- 
duct of  human  affairs,  would  do,  or  doing  something  which  a  prudent 
and  reasonable  man  would  not  do; "  provided,  of  course,  that  the 
party  whose  conduct  is  in  question  is  already  ioi  a  situation  that 
brings  him  under  the  legal  duty  of  taking  care.  That  is,  to  render  a 
defendant  liable  there  must  be:  (1)  A  legal  duty  to  use  care. 
(2)  That  duty  must  be  due  from  the  defendant  to  the  plaintiff.  (3)  There 
must  bo  a  breach  of  that  duty.  (4)  There  must  be  damage  resulting, 
In  the  legal  sense.  (5)  And  such  damage  must  be  suffered  by  the 
plaintiff.  Blyth  v.  Birmingham  Water  Works  Co.,  11  Ex.  Rep.  781;  Pol- 
lock on  Torts,  3U2. 

: 


452  QUESTIONS  AND  ANSWERS. 

68.  Are  there  degrees  of  care  or  of  negligence? 

The  best  answer  seems  to  be  that  there  are  no  degrees  of  care  or 
of  negligence,  but  the  courts  are  constantly  talking  about  slight  and 
ordinary  and  great  care,  and  gross  negligence.  The  right  view 
seems  to  be  that  the  law  requires  a  man  to  use  due  care,  in  all  cir- 
cumstances, or,  as  it  was  expressed  in  Meredith  v.  Reed,  26  Ind.  334, 
336,  all  care  is  ordinary  care;  such  care  as  a  prudent,  careful  man 
would  take  under  like  circumstances.  The  degree  of  care  is  always 
in  proportion  to  the  danger  to  be  apprehended. 

X.     CONTRIBUTORY  NEGLIGENCE. 

69.  A  negligently  tethered  his  horse  on  the  highway,  and  B., 
driving  negligently,  ran  into    the  horse  and  injured  him.     In 
an  action  by  A.,  B.  pleads  contributory  negligence.     Is  the  plea 
good? 

No.  The  plaintiff  is  only  barred  if  his  negligence  was  part  of 
the  proximate  cause  of  the  damage.  Here  the  plaintiff's  negli- 
geL.  e  was  merely  an  antecedent.  It  afforded  the  defendant  an 
opportunity  of  doin~-  the  wrong,  but  was  not  the  immediate  cause 
of  the  loss.  The  cause  is  to  be  distinguished  from  the  occasion. 
The  man  who  has  the  last  clear  chance  of  avoiding  the  injury  is 
sololy  responsible.  Pollock  on  Torts  (4th  ed ),  418.  421;  Da  vies  v. 
Mann,  10  M.  &  W.  546;  Radley  v.  London,  etc.,  R.  Co.,  L.  R.  1 
App.  Cas.  754. 

"  Although  there  may  have  been  negligence  on  the  part  of  the  plain- 
tiff, yet,  unless  he  might,  by  the  exercise  of  ordinary  care,  have  avoided 
the  consequences  of  the  defendant's  negligence,  he  is  entitled  to  re- 
cover." Per  Parke,  B.,  in  Davies  v.  Mann,  supra.  This  is  the  usual 
charge  to  a  jury,  and  is  correct  in  all  cases,  except  where  both  parties 
were  negligent  at  the  same  time.  Pollock  on  Torts  (4th  ed.),  418. 

70.  A.  was  injured  by  the  combined  negligence  of  B.  and  C. 
He  sues  B.  alone,  and  B.  pleads  that  C.  was  also  in  fault.     Will 
the  plea  defeat  the  action  ? 

No.  It  makes  no  difference  that  a  third  person  was  also  in  fault. 
A  defendant  can  only  plead  the  contributory  negligence  of  the 
plaintiff  himself.  Matthews  v.  L.  S.  T.  Co.,  58  LAW  Journal  Rep. 
Q.  B.  D.,  N.  S.,  12  (pt.  2). 

71.  A.  said  that  he  would  strike  the  first  man  that  did  not 
<jet  out  of  his  way,  and  struck  B.     In  an  action  by  B.,  he  pleads 
contributory  negligence  in  that  B.  did  not  get  out  of  his  way.     Is 
the  plea  good? 

No.  Contributory  negligence  has  nothing  to  do  with  an  inten- 
tional battery.  One  is  not  bound  to  use  any  care  to  avoid  such  a 


TORTS.  453 

batter}',  either  by  retreating  or  in  any  other  way.     Steinmetz  v 
Kelly,  72  Ind.  442. 

XI.    DECEIT. 

72.  What  allegations  must  be  found  in  a  good  declaration  in 
deceit f 

The  material  allegations  are: 

"  1.  That  the  defendant  has  made  a  representation  in  regard  to 
a  material  fact; 

"  2.  That  such  representation  is  false; 

_'  3.  That  such  representation  was  not  actually  believed  by  the 
defendant,  on  reasonable  grounds,  to  be  true; 

"  4.  That  it  was  made  with  intent  that  it  should  be  acted  on; 

"  5.  That  it  was  acted  on  by  complainant  to  his  damage;  and, 

"  6.  That  in  so  acting  on  it  the  complainant  was  ignorant  of  its 
falsity;  and  reasonably  believed  it  to  be  true."  Southern  Develop- 
ment Co.  v.  Silva,  125  U.  S.  247,  250;  Litchfield  v.  Hutchinson,  117 
Mass.  195;  Marsh  v.  Falkers,  40  N.  Y.  562;  Meyer  v.  Amidon,  45 
id.  169;  Brackett  v.  Griswold,  112  id.  454,  467. 

It  is  immaterial  whether  the  defendant  was,  or  expected  to  be, 
personally  benefited,  or  was  in  collusion  with  the  person  who  did  get 
the  benefit;  it  is  sufficient  if  the  plaintiff  was  damaged.  Hubbard 
v.  Briggs,  31  N.  Y.  518,  529;  Schwenk  v.  Naylor,  102  id.  683; 
N.  Y.  Land  Co.  v.  Chapman,  118  id.  288;  Birsternd  v.  Farring- 
ton,  36  Minn.  320;  Kuth  v.  Goldson,  22  111.  App.  457. 

73.  A.  made  a  statement,  honestly  believing  it  to  be  true,  but 
Tie  was  negligent  in  so  believing,  and  B.,  who  acted  in  reliance 
upon  it,  was  injured.     Has  B.  a  right  of  action? 

No.  An  honest  belief,  though  negligent,  is  held  to  be  a  good 
defense.  Deny  v.  Peek,  L.  K.  13  App.  Cas.  337.  But  there  is 
some  disagreement  in  this  country.  See  Furnas  v.  Friday.  102  Ind. 
129:  Terhime  v.  Dever,  36  Ga.  648,  651. 

But  want  of  reasonable  grounds  of  belief  is  very  strong  evidence 
of  want  of  belief,  though  not.  by  itself,  sufficient  proof  of  it. 

In  New  York  and  New  Jersey  the  fraudulent  intent  must  be  es- 
tablished. Addington  v.  Allen,"  11  Wend.  (N.  Y.)  375,  387;  Meyer 
v.  Amidon,  45  N.  Y.  169;  Salisbury  v.  Howe,  87  id.  128;  Cowley 
v.  Smyth,  46  N.  J.  Law,  380.  In  Massachusetts  where  the  defend- 
ant has  the  means  of  knowledge,  but  makes  a  statement,  having  no 
knowledge,  upon  which  the  plaintiff  acts,  he  is  liable.  Cole  v.  Cas- 
sidy,  138  Mass.  437,  The  intent  to  deceive  is  presumed  where  the 
defendant  has  knowledge  that  his  statements  are  false.  Hudnut  v. 
Gardner,  59  Mich.  341.  "  If  a  party  recklessly  makes  a  false  repre- 
sentation, of  the  truth  or  falsehood  of  which  he  knows  nothing,  for 
the  fraudulent  purpose  of  inducing  another,  in  reliance  upon  it.  to 
make  a  contract,  or  do  an  act  to  his  prejudice,  and  the  other  party 


454  QUESTIONS  AND  ANSWERS. 

does  so  rely  and  act  upon  it,  the  party  making  the  false  representa- 
tion is  liable  for  the  fraud,  as  much  as  if  he  had  known  it  to  be 
false."  Beebe  v.  Knapp,  28  Mich.  53,  76. 

74.  A.  made  a  representation,  intending  to  deceive  B.     C. 
acted  upon  it  and  was  injured.     Can  C.  recover? 

No.  To  make  a  man  liable  he  must  intend  that  his  representa- 
tion shall  be  relied  upon.  There  must  be  something  to  connect 
the  persons  making  the  representations  (the  defendants)  with  the 
party  complaining  that  he  has  been  injured  and  deceived  by  them. 
Thus,  where  a  fraudulent  prospectus  is  issued  by  a  company;  "  the 
purchaser  of  shares  in  the  market  upon  the  faith  of  a  prospectus 
which  he  has  not  received  from  those  who  are  answerable  for  it, 
cannot,  by  action  upon  it,  so  connect  himself  with  them  as  to  render 
them  liable  to  him  for  the  misrepresentations  contained  in  it,  as  if 
it  had  been  addressed  personally  to  himself."  Peek  v.  Gurney,  L.  K. 
€  H.  of  L.  377, 399;  Addington  v.  Allen,  11  Wend.  (N.  Y.)  375,  383; 
McCracken  v.  West,  17  Ohio  St.  16;  Simar  v.  Canaday,  53  N.  Y.  298; 
Cooley  on  Torts,  494,  and  cases  cited. 

75.  A.  was  deceived,  acting  partly  upon  a  representation  by 
B.f  and  partly  upon  other  information.     Can  B.  be  held? 

Yes.  A.  need  not  rely  entirely  upon  the  false  representation  in 
order  to  sue.  Tatton  v.  Wade,  18  C.  B.  371.  It  is  generally  held 
that  the  representation  must  be  such  that  no  action  would  have 
been  taken  without  it,  i.  e.,  that  it  forms  a  material  inducement. 
Safford  v.  Grout,  120  Mass.  20,  25;  Addington  v.  Allen,  11  Wend. 
(N.  Y.)  375,  382. 

It  has,  however,  been  held  tbat  if  the  representations  contributed 
to  the  formation  of  the  conclusion,  it  is  enough.  Shaw  v.  Stein, 
8  Bosw.  (K  Y.)  157,  159;  Hubbard  v.  Briggs,  31  N.  Y.  518,  532. 

76.  A.,  while  trading  horses  with  B.,  said  that  his  horse  would 
sell  for  $150.     B.  finds  that  he  can't  get  $100  for  the  horse  and 
sues  for  deceit.     Can  he  recover? 

The  mere  praising  of  one's  goods,  by  a  party  to  a  contract,  is  not 
actionable.  Harvey  v.  Young,  Yelv.  21.  In  general,  such  words 
do  not  affect  the  purchaser,  and  this  fact  has  crystallized  into  law, 
so  thai  no  action  is  now  allowed,  even  where  a  man  does  rely  upon 
them.  Chrysler  v.  Canaday,  90  N.  Y.  272;  Poland  v.  Brownell,  131 
Mass.  138;  Hartman  v.  Flaherty,  80  Ind.  472. 

The  theory  on  which  the  courts  base  their  opinions  is  that  of  negli- 
gence in  the  plaintiff.  Law  v.  Grant,  37  Wis.  548;  Mooney  v.  Miller, 
102  Mass.  217,  220;  Hobbs  v.  Parker,  31  Me.  143;  Stewart  v.  Emerson, 
i52  N.  H.  301,  314.  But  this  theory  is  not  satisfactory.  The  rule  that 
A  man  is  not  liable  for  "  puffing  "  his  property  is  due  to  the  fact  that 


TORTS.  455 

such  statements  are  not  generally  relied  upon.  Where  the  same  state- 
ments are  made  by  third  persons  they  may  be  actionable,  as  plain- 
tiff is  much  more  likely  to  rely  upon  them.  Burr  v.  Willson,  32  Minu. 
206,  210.  See  Law  v.  Grant,  37  Wis.  548,  567. 

But  the  rule  that  "  puffing  "  is  not  actionable  does  not  apply  to  mis- 
representations of  facts,  affecting  the  value  of  the  property,  as  to  ita 
condition  or  quality,  and  from  which  the  vendee  would  form  his  own 
estimate  of  value.  Ellis  v.  Andrews,  56  N.  Y.  83;  Davis  v.  Heard,  44 
Miss.  50;  Busier  vi.  Farrington,  36  Minn.  320.  Nor  where  the  vendor 
has  by  artifice  prevented  the  vendee  from  making  an  examination  of 
the  property,  or  further  inquiry  in  respect  to  It  Simar  v.  Canaday,  53 
N.  Y.  298;  Burr  v.  Willson,  22  Minn.  206,  210.  Nor  where  the  vendor  as- 
sumed the  peculiar  knowledge  of  an  expert.  Eaton  v.  Winnie,  20  Mich. 
156,  166,  and  cases  cited. 


TRUSTS. 

I.     GENERAL  NATURE  OF  TRUSTS. 

1.  Define  a  trust. 

A  trust  involves  the  law  of  property  and  the  law  of  contracts;  it 
means  property  held  by  one  person  for  the  benefit  of  another.  In. 
the  legal  sense  there  are  always  three  parties  concerned  in  its  crea- 
tion, the  grantor,  who  gives  up  some  property  or  right;  the  grantee, 
i.  e.,  the  trustee  to  whom  the  property  or  right  is  granted;  and  the 
one  beneficially  interested,  or  the  ccstni  quo  trust. 

But  the  grantor  and  cestui  are  often  identical;  and, again,  one  who 
declares  himself  trustee  of  some  property  for  another  may  thus  fill 
the  place  of  both  grantor  and  grantee.  The  trust  once  created,  the 
trustee  and  the  cestui  are  the  only  persons  involved.  The  grantor, 
as  such,  has  then  nothing  to  do  with  it.  Lewin  on  Trusts,  chap.  1; 
1  Perry  on  Trusts,*  §§  28,  38. 

2.  What  may  be  the  subject-matter  of  a  trust,  and  what  are  the 
relations  of  the  trustee  and  cestui  que  trust  towards  it? 

The  subject-matter  of  a  trust  is  always  some  specific,  existing  res, 
the  title  of  which  is  held  by  the  trustee,  to  be  dealt  with  by  him  for 
the  benefit  of  the  cestui. 

This  res  may  be  anything  which  courts  recognize  as  property,  a 
chattel,  a  legal  or  an  equitable  claim  on  another  party,  land,  etc. 
1  Perry  on  Trusts,  §§  67-69. 

Whatever  it  is,  the  trustee  has  a  complete  legal  title.  1  Perry  on 
Trusts,  §  321.  And  this  holding  the  res  and  dealing  zvith  it  for  the 
cestui,  according  to  the  terms  of  the  trust,  are  the  characteristics  of 
his  position.  Id.,  §  427. 

The  cestui  has  the  "  equitable  interest,"  which  does  not  mean  an 
interest  in  the  trust-ray  itself,  but  a  personal  right  against  the  trus- 
tee to  compel  the  latter  to  deal  with  the  trust  property  according  to 
the  express  and  implied  terms  of  the  trust  as  it  was  created.  Id., 
§§  282,  298,  300,  304,  843,  ff.  See  1  Harv.  Law  Rev.  1,  9. 

3.  Distinguish  express  trusts,  implied  trusts,  resulting  trusts 
and  constructive  trusts. 

"  Express  trusts  are  also  called  direct  trust'.  They  are  generally 
created  by  instruments  that  point,  out  directly  and  expressly  the 

*  The  references  to  Perry  on  Trusts  are  to  the  3d  edition. 

*    456 


TRUSTS.  457 

property,  persons,  and  purposes  of  the  trust;  hence  they  are  called 
direct  or  express  trusts  in  contradistinction  from  those-  trusts  that 
are  implied,  presumed,  or  construed  by  law  to  arise  out  of  the 
transactions  of  parties.  As  express  trusts  are  directly  declared  by 
the  parties,  there  can  never  be  a  controversy  whether  they  exist 
or  not.  In  such  trusts  these  questions  arise:  Are  they  legal  or 
illegal,  and,  what  is  the  construction  of  the  various  terms  and  pro- 
visions which  they  contain  ? 

"  Implied  trusts  are  trusts  that  the  courts  imply  from  the 
words  of  an  instrument,  where  no  express  trust  is  declared,  but 
such  words  are  used  that  the  court  infers  or  implies  that  it  was 
the  purpose  or  intention  of  the  parties  to  create  a  trust. 

"  Resulting  trusts  are  trusts  that  the  courts  presume  to 
arise  out  of  the  transactions  of  parties,  as  if  one  man  pays  the 
purchase  money  for  an  estate,  and  the  deed  is  taken  in  the  name  of 
another.  Courts  presume  that  a  trust  is  intended  for  the  person 
who  pays  the  money. 

"  A  constructive  trust  is  one  that  arises  when  a  person  clothed 
with  some  fiduciary  character,  gains  some  advantage  to  him- 
self, by  fraud  or  otherwise.  Courts  construe  this  to  be  an  advan- 
tage for  the  cestui  que  trust  or  a  constructive  trust."  1  Perry  on 
Trusts,  §§  24-27. 

II.    A  TRUST  DISTINGUISHED: 
a.    From  a  debt. 

4.  If  A.  deposits  a  matured  note  in  a  bank,  indorsed  "  for 
collection  "  or  "  for  deposit"  what  is  the  relation  of  the  bank 
to  him? 

Before  collection,  the  bank  is  presumptively  a  trustee,  i.  e., 
it  holds  the  legal  title  of  the  note,  to  deal  with  it  for  the  customer. 
Bank  v.  Hubbell,  117  N.  Y.  384.  And  the  rule  ia  the  same  when  the 
indorsement  is  in  blank.  St.  Louis  Co.  v.  Johnston,  133  IT.  S.  566. 

After  collection,  the  relation  is  debtor  and  creditor,  for  there  is 
no  duty  to  deal  with  the  identical  money  collected,  but  only  to  hand 
over  an  equal  amount  Bank  v.  Bank,  16  Wall.  483,  50 1. 

5.  What  relationship  is  indicated  between  two  parties,  by  the 
regular  payment  of  interest  on  money  transferred  from  one  to 
the  other? 

It  tends  strongly  to  show  that  the  relation  is  that  of  debtor  and 
creditor,  rather  than  that  of  trustee  and  cestui  que  trust.  If  money 
is  paid  by  A.  to  B.  for  investment,  B.  is  a  trustee,  and  need  exercise 
only  care  and  diligence  in  dealing  with  it  for  investment:  the  in- 
terest may  be  high  or  low.  and  will  probably  varv  in  amount :  again, 
if  it  is  left  with  B.  for  a  specific  purpose,  as  to  hand  over  to  C..  no 
interest  at  all  would  be  due.  The  resrular  payment  of  interest  at 
a  fixed  rate,  however,  indicates  that  the  one  so  paying  is  a  debtor, 


'458  QUESTIONS  AND  ANSWEBS. 

is  free  to  use  the  money  as  he  likes,  and  is  absolutely  liable  for  its 
repayment.     Ex  parte  Broad,  13  Q.  B.  Div.  740. 

6.  A.  deposits  a  note  in  a  New  York  bank  for  collection.     It  is 
^ent  to  a  Chicago  bank  for  that  purpose,  and  is  collected,  but  the 
Chicago  bank  fails  before  remittance.     Who  loses  ? 

The  decisions  are  irreconcilable.  Some  courts  hold  that  the  New 
York  bank  is  liable,  thus  putting  it  in  position  of  guaranteeing  the 
solvency  of  the  Chicago  bank.  Van  Wart  v.  Woolley,  3  B.  &  C. 
439;  Ex.  Bk.  v.  Nat.  Bk.,  112  U.  S.  276,  at  287-290;  Bank  v.  Bank, 
118  N.  Y.  443,  447. 

Another  line  of  cases  take  the  more  logical  ground  that- the  New 
York  bank  was  trustee  of  the  note  itself,  (for  A.  as  cestui);  that  it 
was  still  a  trustee  when  the  collection  was  made  by  the  Chicago 
bank,  the  subject-matter  (or  trust  res)  being  then  its  claim  upon 
the  latter  for  the  proceeds,  and  that  as  its  position  throughout  was 
thus  that  of  trustee,  it  can  only  be  held  liable  in  case  it  has  been 
lacking  in  ordinary  diligence  and  care  in  the  transaction.  Bank 
v.  Scovil,  12  Conn.  303;  Aetna  Co.  v.  Bank,  25  111.  243;  Fabens  v. 
Bank.  23  Pick.  330. 

7.  A.  deposits  $500  in  a  bank  to  meet  a  coming  obligation 
to  B.    Does  the  bank  hold  this  money,  meanwhile,  in  trust  for  A.  ? 

No.  The  obligation  of  the  bank  is  not  that  it  shall  use  that 
identical  money  for  the  purpose  described.  The  bank  promises  to 
pay  B.  out  of  its  general  assets,  and  if  it  fails,  A.  can  only  prove  as 
an  ordinary  creditor.  In  re  Barned's  Co.,  39  Law  Journal,  Chanc. 
635;  Simonton  v.  First  Bank,  24  Minn.  216.  Contra,  Johnson  v. 
Whitman,  10  Abb.  Pr.  (N.  S.)  111. 

b.    From  an  Assignment. 

8.  X.  owes  Y.  $100.     Y.  assigns  the  debt  to  Z.     What  rights 
does  Z.  get,  and  how  does  he  enforce  them? 

He  gets  a  legal  right  to  sue  at  law  in  Y.'s  name.  He  must  use 
this  action  at  law,  and  cannot  go  into  equity,  unless  Y.  is  pre- 
venting the  collection  of  the  claim.  Y.  is  not  a  trustee  for 
Z.;  he  has  no  active  duty  to  deal  with  any  property  for  Z.'s 
benefit.  His  duty  is  to  keep  quiet  and  allow  Z.  to  use  his  name  to 
•enforce  the  debt.  Hammond  v.  Messenger,  9  Simon,  327;  Walker 
v.  Brooks,  125  Mass.  241;  Chicago  Co.  v.  Nichols,  57  111.  464. 

9.  What  would  be  the  effect  of  payment  of  the  debt  by  X.  to  Y., 
the  assignor  and  original  creditor,  X.  knowing  of  the  assign- 
ment? 

X.  would  be  liable  to  pay  again,  to  Z.,  as  if  he  had  not  made  the 
payment  to  Y.  Such  payment  would  be  good  at  law,  but  on  Z.'s 


TRUSTS.  459 

suing  in  Y.'s  name,  if  X.  set  up  a  plea  of  payment,  Z.  would  reply 
that  in  equity  X.  had  no  right  to  pay,  since  he  knew  of  Y.'s  assign- 
ment to  Z.  Ins.  Co.  v.  Messenger,  21  N.  J.  Eq.  107. 

On  the  other  hand,  if  Y.  were  a  trustee  for  Z.,  and  X.  paid  him 
a  debt  due  him  as  such  trustee  the  payment  would  be  good.  X. 
would  be  discharged  whether  he  knew  that  Y.  held  the  debt  in  trust 
for  Z.  or  not.  Thomassen  v.  Van  Wyngaarden,  65  Iowa,  687. 

c.    Trust  Distinguished  from  an  Executorship. 

10.  X.  bequeathes  his  livestock  to  Z.,  and  devises  his  farm  to 
his  executor,  Y.,  to  be  sold  for  the  benefit  of  Z.     Is  there  a  trust 
of  the  farm  or  the  stock,  or  both  ? 

There  is  a  trust  of  the  farm  only.  Y.,  being  executor,  does,  to  be 
sure,  take  the  legal  title  to  the  stock  under  the  will,  and  he  holds  it 
for  the  benefit  of  the  legatee,  just  as  he  holds  the  legal  title  to  the 
farm  for  the  benefit  of  Z.  The  reason  that  he  is  not  a  trustee  of 
the  stock  when  his  relation  towards  it  is  virtually  that  of  trustee 
is  historical;  the  duties  of  executors  have  for  generations  been  de- 
fined, and  they  include  the  care  of  personalty;  they  do  not  in- 
clude the  care  of  real  estate,  and  Y.  could  not,  therefore,  as  ex- 
ecutor, assume  to  perform  the  duty  mentioned  as  to  the  farm 
His  duties  are  so  similar  to  those  of  trustees  that  executors  have 
"been  sometimes  called  "  legal  trustees."  See  Hewson  v.  Phillips, 
11  Ex.  699;  Drake  v.  Price,  5  N.  Y.  430. 

III.    CREATION  OF  A  TRUST. 

a.    By  Declaration,  Without  Transfer. 

11.  How  is  a  trust  created  by  declaration,  without  transfer 
cf  title? 

This  takes  place  when  a  person  makes  himself  trustee  for  another. 
The  words  "  I  declare  myself  trustee  for  X.,"  or  any  equivalent  ex- 
pression showing  an  intention  to  thereby  assume  the  position  of 
trustee,  are  sufficient  to  give  an  equitable  right  to  X.  in  any 
property  of  the  declarant  which  he  may  mention  in  the  declara- 
tion. If  the  subject-matter  of  the  declaration  is  land,  the 
words  must  be  in  writing  (see  section  d,  infra),  but  the  important 
point  is  that  one  may  bind  himself  thus  as  trustee,  without  any 
consideration  whatever.  Ex  parte  Pys,  18  Ves.  140;  Gerrish  v. 
New,  etc.,  Inst,  128  Mass.  159;  1  Perry  on  Trusts,  §  96,  and  cases. 
The  intention  is  the  determining  element,  and  the  primary  question 
is  thus  one  of  fact :  Jones  v.  Lock,  L.  R.  1  Ch.  25,  cited  at  length 
in  1  Perry  on  Trusts,  §  99,  n.;  the  difficulty  being  to  distinguish  a 
declaration  of  a  trust  from  a  declaration  of  a  mere  intention  to 
make  a  gift. 

12.  X.  said  to  Y.:    "I  give  you  these  bonds  and  show  you 
how  to  cut  the  coupons  so  you  can  use  the  money  yourself."     He 


460  QUESTIONS  AXD  ANSWEKS. 

did  not  hand  them  over,  however,  but  gave  Y.  the  money  as  the 
coupons  were  cashed,  from  time  to  time.  The  intention  was  to- 
transfer  some  interest  to  Y.  What  title,  if  any,  did  he  get? 

Y.  got  no  title  of  any  kind.  He  did  not  get  a  legal  title,  be- 
cause there  was  no  delivery  of  the  bonds,  either  actually  or  by  deed; 
nor  an  equitable  claim  on  X.,  because  no  court  will  enforce  as  a 
trust,  what  is  only  an  uncompleted  gift.  Milroy  v.  Lord,  4  DeG., 
F.  &  J.  264;  Peters  v.  Co.,  72  Iowa,  405;  Connor  v.  Trawick's- 
Administrator,  37  Ala.  289;  Baltimore  Co.  v.  Mali,  65  Md.  93. 

b.  By  Transfer  to  Another,  with,  a  Declaration  of  Trust  for  a  Third 

Person. 

13.  Take  the  following  cases  and  point  out  which  create  a- 
trust,  and  which  merely  express  a  wish  or  desire,  on  the  part  of 
the  grantor,  to  benefit  the  third  person  named:     (1)  "  I  devise 
Blackacre  to  X.,  in  trust  for  Y.;  "'    (2)  "  to  X.,  hoping  he  will 
keep  the  estate  in  the  family;  "    (3)  "  to  X.,  recommending  that 
he  dispose  of  it  at  death  to  Y.  and  Z.;  "   (4)  "  the  residue  to  X., 
my  desire  being  that  she  shall  distribute  it  as  she  thinks  will  be 
most  agreeable  to  my  wishes." 

(1)  is,  of  course,  a  clear  trust,  and  is  the  language  that  should 
always  be  used  when  a  trust  is  intended;  (2)  was  held  not  a  trust; 
1  Br.  Ch.  Gas.  142;  (3)  was  regarded  as  creating  a  trust;  2  Yes. 
Jr.  333;  and  (4)  as  giving  the  property  to  the  grantee  for  herself. 
5  Ch.  Div.  225. 

Cases  like  (3)  and  (4)  are  clearly  irreconcilable  when  "  recom- 
mending •*'  is  strong  enough  to  charge  the  grantee  with  a  duty,  but 
'•  my  desire"  is  not.  Of  late,  the  tendency  is  to  give  to  expressions 
of  hope,  confidence  and  the  like,  merely  their  natural  force,  and  to 
find  a  trust  only  where  a  legal  duty,  and  not  simply  an  honorable 
obligation,  is  imposed.  See  In  re  Diggles.  39  Ch.  Div.  253  (1888); 
Bristol  v.  Austin,  40  Conn.  438,  447  (1873);  Warner  v.  Bates,  98 
Ma«s.  273,  277;  Perry  on  Trusts,  §§  114,  115. 

c.    Constructive  Trusts. 

These  arise  from  the  operation  of  law.  They  have  already  been 
defined  (Ques.  3),  and  they  are  noticed  incidentally  in  this  section 
under  various  topics. 

d.    The  Effect  of  the  Statute  of  Frauds,  29  Car.  II,  c.  3,  §§  7-9.* 

14.  A.  made  a  lease  for  years  to  B.,  who  was  to  hold  it  as 
trustee  for  C.     B.  became  bankrupt,  and  then,  for  the  first  time, 

*  Even  where  a  trust  need  not  be  c'entrd  by  a  written  instrument,  a  writins-of  some 
kind  is  n^essarv  to  pr  '•?  it  in  nearly  all  the  States.  K«»ntn-ky.  Tennessee.  Ohio  and 
Virginia  being  the  chief  exceptions.  Se'e  Ames,  Cases  on  Trusts  (2d  ed.),  176,  note. 


TRUSTS.  461 

acknowledged  the  trust  in  writing.     Does  the  statute  apply  to 
chattels  real  and  if  so,  who  has  here  the  beneficial  interest? 

The  statute  applies  to  all  estates  in  land;  and  B.  holds  as  trustee 
for  C.,  to  the  exclusion  of  B.'s  creditors.  In  other  words,  the  ac- 
knowledgment of  the  moral  duty  having  been  made,  the  statute  is 
satisfied,  and  the  acknowledgment  takes  effect,  by  relation,  from 
the  date  of  the  conveyance.  Gardner  v.  Rowe,  2  Sim.  &  Stu  346- 
Norton  v.  Mallory,  63  N.  Y.  434. 

15.  Suppose  A.  transfers  to  B.  a  bond  secured  by  a  mortgage 
on  land,  B.  admitting,  verbally,  a  trust  for  C.     This  creates, 
under  the  Statute  of  Frauds,  a  valid  trust  as  to  the  money  due, 
since  the  bond  is  personal  estate.   What  becomes  of  the  mortaaaed 
land? 

B.  holds  that  also  in  trust  for  C.,  to  the  extent  of  the  debt  it 
secures.  "Writing  is  unnecessary,  because  the  statute  does  not 
apply  to  chattels  personal.  This  establishes  the  trust  so  far  as  the 
"bond  is  concerned,  and  the  mortgage  is  carried  along  with  it.  It 
is  a  mere  security,  and  passes  as  incidental  to  the  debt.  Denser  v. 
Warwick,  33  N.  J.  Eq.  133;  Bobbins -Y.  Eobbins,  89  N.  Y.  251; 
Childs  v.  Jordan,  106  Mass.  321. 

16.  A.  made  a  u'ill,  leaving  all  his  real  estate  to  B.  absolutely. 
He  read  it  to  B.,  and  stated  to  him  that  he  was  to  hold  the  prop- 
erty in  trust  for  C.     What  is  the  effect  of  these  words? 

They  impose  a  trust  on  the  property  in  favor  of  C.  Story,  Eq. 
Jur.  781;  Williams  v.  Yreeland,  29  K  J.  Eq.  417.  Logically,  an 
oral  declaration  should  have  no  more  force  in  such  case  than  in  a 
transfer  inter  rh'os.  Equity  would  not  allow  B.  to  keep  the  land, 
"but  unless  he  acknowledged  his  moral  duty  to  C.,  the  beneficial 
interest  should  go,  by  a  resulting  trust,  to  A.'s  heirs.  The  courts 
are  probably  influenced  by  the  desire  to  effectuate  the  testator's 
intention. 

IV.     THE  TRUSTEE. 

17.  Who  may  be  appointed  trustee? 

The  creator  may,  of  course,  appoint  anyone  he  chooses,  infant, 
bankrupt  or  lunatic;  but  as  equity  will  never  suffer  a  trust  to  fail 
for  lack  of  a  trustee,  the  courts  frequently  have  occasion  to  appoint 
persons  to  the  position.  The  three  classes  named  above  are  not  re- 
garded as  desirable  incumbents,  and  courts  have  also  hesitated  to 
appoint  Cl)  a  near  relative  of  the  ccstui;  Parker  v.  Moore,  25  N. 
J.  Eq.  228,  240;  (2)  a  married  woman,  Parker  v.  Moore,  supra;  or 
(3)  the  husband  of  one  of  the  beneficiaries,  Re  Hattatt's  Trusts, 
18  Week.  Rep.  416,  though  this  is  done  at  times,  on  the  hus- 
band's undertaking  to  give  up  the  position,  if  he  survives  all  his 
co-trustees. 


462  QUESTIONS  AND  ANSWERS. 

18.  Suppose  X.  dies  while  sole  trustee  of  real  estate,  and  the 
title  descends  to  his  infant  son,  ten  years  old.     What  are  the 
cestuis  to  do? 

Originally  the  only  decree  that  could  be  made  was  that  the 
infant  should  convey  when  he  came  of  age.  Whitney  v.  Stearns, 
11  Met.  319.  But  the  statutes,  both  here  and  in  England,  allow 
the  chancery  courts  to  vest  the  infant's  title  in  a  suitable  person. 
Livingston  v.  Livingston,  2  Johns.  Ch.  (N.  Y.)  537.  And  the 
same  process  of  confiscation  is  applied  to  a  lunatic  trustee. 

19.  Can  a  trustee  resign  at  his  own  convenience? 

No.  Having  once  accepted  the  trust,  he  cannot  avoid  its  duties, 
except  by  permission  of  the  court,  or  of  all  the  cestuis.  Perry  on 
Trusts,  §§  276,  280;  Veazie  v.  McGugin,  40  Ohio  St.  365. 

V.  THE  CESTTJI  QUE  TRUST. 

20.  Who  may  be  a  cestui? 

Anyone.  The  right  of  the  cestui  against  the  trustee  is  simply 
one  species  of  property,  and  whoever  can  take  a  legal  title  can  also 
take  this  equitable  right.  1  Perry  on  Trusts,  §§  60,  65. 

21.  A  testator  bequeathed  a  thousand  dollars  to  his  executors 
in  trust,  to  have  masses  said  for  the  repose  of  his  soul.     Does  the 
absence  of  a  cestui  que  trust,  capable  of  enforcing  the  trust,  ren- 
der it  invalid? 

It  does,  in  many  States.  It  is  considered  that  there  is  only  an 
imperfect  obligation  on  the  trustee,  and  the  doctrine  is  carried 
so  far,  that  though  he  may  be  capable  and  willing  to  live  up  to  his 
moral  duty,  he  is  not  permitted  to  do  so  against  the  wish  of  those 
who  would  be  entitled,  if  the  trust  failed.  Holland  v.  Alcock,  108 
N.  Y.  312,  322;  Me.  Church  v.  Clark,  41  Mich.  730. 

In  England  and  some  of  our  own  States  the  trust  is  regarded  as 
valid,  and  the  trustee  allowed  to  fulfill  the  wish  of  the  testator.  In 
re  Dean,  41  Ch.  Div.  552  (beneficiaries  were  testator's  horses  and 
dogs);  Ross  v.  Duncan,  6  Miss.  305;  Cleland  v.  Waters,  19  Ga.  35, 
81. 

In  the  case  of  charitable  trusts,  however,  a  cestui  capable  of  taking 
the  legal  title  is  not  necessary,  or  in  fact  possible. 

"  Charitable  "  has  a  technical  meaning,  which  is  laid  down  in  Stat. 
43  Eliz.,  chap.  4,  in  broad  terms,  and  which  has  received  a  liberal 
Interpretation.  Its  nature  and  the  general  character  of  such  a  trust 
appear  in  Mr.  Justice  Gray's  definition,  as  follows: 

"  A  charity  is  a  gift  to  be"  applied  for  the  benefit  of  an  indefinite 
number  of  persons,  either  by  bringing  their  minds  under  the  influence 
of  religion  or  education,  by  relieving  their  bodies  from  disease,  suffer- 


TEUSTS.  465 

Ing  or  constraint,  by  assisting  them  to  establish  themselves  In  life, 
or  by  erecting  or  maintaining  public  buildings  or  works,  or  otherwise 
lessening  the  burdens  of  government."  Jackson  v.  Phillips,  14  Allen, 
539,  556.  Property  so  given  is  relieved  from  the  rule  against  per- 
petuities. 2  Perry  on  Trusts,  §§  736,  737.  But  see  Levy  v.  Levy,  33- 
N.  Y.  97,  130.  And  courts  will  use  every  legitimate  effort  to  support 
such  disposal  of  it.  Inglis  v.  Sailors,  etc.,  3  Pet.  99,  117. 

VI.    TRANSFER  OF  THE  TRUST  PROPERTY. 

a.     By  the  Trustee. 

22.  M.,  trustee  for  X.  of  two  pieces  of  land,  without  power 
to  sell,  sold  and  conveyed  one  of  them  to  A.,  who  paid  value,  but 
had  knowledge  of  the  trust.     M.  gave  the  other  to  B.,  who  knew 
nothing  of  X.'s  interest.     What  are  the  rights  of  X.? 

Both  A.  and  B.  hold  the  land  as  trustees  for  X.  These  trusts 
are  "  constructive; "  i.  e.,  they  arise  by  operation  of  law,  and  are 
founded  on  principles  of  natural  justice. 

A.  is  charged  with  the  trust  for  X.,  by  his  knowledge  of  X.'s 
rights.  He  knew  he  had  no  right  to  buy  of  M. 

As  to  B.,  he  has  paid  nothing,  so  it  is  no  hardship  to  him  that 
X.'s  rights  in  the  property  remain  undisturbed. 

The  principle,  lor  which  it  is  scarcely  necessary  to  cite  any 
of  the  multitude  of  cases,  is  that  one  taking  property  from  a  trustee 
is  only  protectel  when  he  takes  it  for  a  valuable  consideration,  and 
without  notice  of  the  trust.  1  Story  Eq.  Jur.  pp.  415,  416;  1  Perry 
on  Trusts,  §§  217,  218;  Paige  v.  6'Xeal,  12  Cal.  483,  498;  Cogel 
v.  Raph,  24  Minn.  194;  Tompkins  v.  Powell,  6  Leigh,  576. 

If  the  purchaser  receives  notice  at  any  time  before  the  full  payment 
of  the  consideration,  he  Is  not  considered  a  purchaser  in  good  faith. 
1  Perry  on  Trusts,  §  221;  Phelps  v.  Morrison.  21  N.  J.  Eq.  195.  And 
this  is  true,  even  if  the  legal  title  has  passed  before  the  buyer  Is  affected 
with  knowledge  of  the  trust.  Wells  v.  Morrow,  38  Ala.  125;  Abell  v. 
Howe,  43  Vt.  403. 

23.  Suppose  T.,  who  has  purchased  in  good  faith  and  for 
value  from  the  trustee,  sells  to  A.,  who,  as  in  question  22,  has 
notice  of  the  trust? 

A  acquires  a  perfect  title,  free  from  the  trust.  Pierce  v.  Faunce, 
47  Me.  507:  Filby  v.  Miller.  25  Penn.  St.  2fi4. 

This  is  because  T.,  as  a  bona  fide  purchaser  for  value,  had  a 
perfect  title,  free  from  any  claim  of  the  ccshri.     He  can.  there- 
fore, deal  with  it  as  freely'  as  if  no  trust  had  ever  existed, 
right  of  his  to  sell  necessarily  mean?  that  other  people  can  safely 
buy,  even  if  they  knew  the  trust  relation  had  been  violated. 


4G4  QUESTIONS  AND  ANSWERS. 

If  the  trustee,  however,  regains  the  property  by  fair  means  from  T. 
or  any  subsequent  holder,  the  equitable  right  of  the  cestui  again 
attaches  to  it.  Troy  Bank  v.  Wilcox,  24  Wis.  671;  2  Pom.  Eq. 
Jur.  754. 

24.  The  above  questions  refer  to  trusts  of  property  in  pos- 
session.    Is  the  bona  fide  purchaser  protected  also,  when  the  res> 
(the  subject-matter  of  the  trust),  is  a  chose  in  action? 

For  example,  suppose  A/s  agent,  B.,  makes  a  contract  for  A., 
but  in  his  own  name,  and  then  sells  the  contract  to  C.,  who  has 
no  notice  of  the  agency.  Can  A.  set  up  his  right  against  C.? 

The  decisions  are  irreconcilable.  All  agree  that  C.  must  stand 
in  B.'s  shoes,  so  far  as  B.'s  relations  with  the  other  party  to  the 
contract  go,  but  the  question  is  whether  the  "  latent  equity,"  which 
existed  in  favor  of  A.  against  B.,  binds  also  the  purchaser  from  B. 

That  it  does,  see  Bush  v.  Lathrop,  22  1ST.  Y.  535;  Downer  v.  Bank, 
39  Vt.  25;  Cave  v.  Mackenzie,  46  L.  J.  Rep.  (Ch.)  564,  the  posi- 
tion of  these  courts  being  that  the  buyer  must  take  the  position 
of  the  seller  in  toto.  On  the  other  side  is  the  strong  consideration, 
that  B.  had  full  control,  legally,  and  passed  to  C.  by  the  assign- 
ment a  power  of  attorney  to  use  his  name  to  sue,  and  do  every 
other  thing  incidental  to  the  enjoyment  of  the  subject-matter  of 
the  transfer.  The  doctrine  of  bona  fide  purchase  ought  from  this 
standpoint  to  protect  him.  Starr  v.  Haskins,  26  N.  J.  Eq.  414; 
Sleeper  v.  Chapman,  121  Mass.  404;  1  Harv.  Law  Rev.  1,  9-12. 

25.  What  is  the  meaning  of  "  for  valuable  consideration  " 
and  "  without  notice  "  ? 

The  former  merely  means,  that  the  contract  of  transfer  must,  be 
for  a  valuable  consideration  (see  the  section  on  Contracts,  supra), 
and  that  a  consideration  of  love  and  affection,  which  will  support 
a  deed  in  certain  cases,  will  not  be  sufficient  to  cut  off  the  cestui 's 
right  in  the  property  transferred. 

The  reason  that  the  purchaser  is  not  protected,  when  he  takes 
with  actual  knowledge  or  constructive  notice  of  the  trust,  is  his 
dishonesty  in  buying  under  such  circumstances.  "  Constructive 
notice  "  means  the  existence  of  circumstances,  such  that  the  court 
will  presume  notice,  e.  g.,  the  recording  of  a  deed,  Us  pendens,  and 
the  like.  See  1  Perry  on  Trusts,  §§  222,  223;  1  Story  Eq.  Jur.  400. 

The  question  also  arises  on  a  sale  of  stock,  or  other  property  stand- 
Ing  in  the  name  of  "  A.  B.,  Trustee,"  whether  the  buyer  must  inquire 
as  to  the  trustee's  power  of  disposition  under  the  terms  of  the  trust. 
It  is  certain  thr.t  he  nnist.  at  least,  make  reasonable  inquiry  into  the 
facts.  Shaw  v.  Spencer.  100  Mass.  382.  390;  Third  Bank  v.  L,ans:e.  51 
Md.  138.  Probably  he  must  find  out  at  his  peril,  for  the  full  protection 
of  the  cestui  ought  to  be  insured.  Shaw  v.  Spencer,  supr't,  (semble). 


TRUSTS.  465 

b.   Transfer  of  the  Equitable  Interest  by  the  Cestui. 

26.  X.,  the  cestui  que  trust,  under  a  trust  of  personal  property, 
assigned  his  interest  to  Y.     Later,  X.  made  a  second  assignment 
of  it  to  Z.     The  latter  notified  the  trustee,  however,  before  Y. 
did  so.     Does  Y.  or  Z.  prevail? 

The  authorities  are  in  conflict.  In  some  States  such  an  assign- 
ment is  not  good  as  against  subsequent  assignees,  unless  the  debtor, 
or  -trustee,  is  notified  of  the  transaction.  Bishop  v.  Holcomb,  10 
Conn.  444;  Weed  v.  Boutelle,  56  id.  570. 

This  is  based  on  the  so-called  "  deceit,"  arising  from  the  failure 
of  the  prior  assignee  to  give  notice. 

Centra,  taking  the  more  rational  position,  that  the  first  assignee 
has  the  property,  and  that  there  is  nothing  left  for  the  assignor 
to  dispose  of  to  the  second  assignee,  see  Thayer  v.  Daniels,  113 
Mass.  129;  Williams  v.  Ingersoll,  89  1ST.  Y.  508,  523;  1  Harv.  Law 
Rev.  1. 

Where  the  second  assignee  makes  inquiry  of  the  trustee  before 
tfirfing,  and  is  led  to  purchase,  because  informed  that,  so  far  as 
the  trustee  knows,  the  estate  is  not  incumbered,  he  has  a  stronger 
case;  Dearie  v.  Hall,  3  Russ.  48;  Spain  v.  Hamilton,  1  Wall.  604; 
but  even  then  it  would  seem  that  the  reasoning  of  Thayer  v.  Daniels 
(supra),  would  hold  good  against  his  claim. 

In  case  the  trust  is  of  land,  the  Invariable  rule  is  that  the  prior  as- 
signee will  prevail.  "  Equity  follows  the  law."  Phillips  v.  Phillips,  2 
De  G.,  F.  &  J.  208;  1  Perry  on  Trusts,  §  438. 

27.  X.,  a  cestui,  assigned  his  equitable  interest  to  Y.,  and 
later  released  for  value  all  that  interest  to  the  trustee,  who  had,  of 
course,  the  legal  title.     The  trustee  had  no  notice  of  the  assign- 
ment to  Y.     Can  he  hold  the  property  for  himself? 

Yes.  His  having  the  legal  title  is  decisive  of  the  case,  accord- 
ing to  the  maxim,  "  Between  equal  equities  the  law  will  prevail." 
It  is  like  a  release  for  value  by  a  creditor  to  his  debtor  after  an 
;ii=si<rnment  of  the  debt.,  of  which  assignment  the  debtor  is  ignorant; 
the'^debtor  is  free  from  further  liability.  Newman  v.  -Newman, 
28  Ch.  Div.  674.  See  also  Shirras  v.  Caig,  7  Cranch,  34;  Boswell 
v.  Goodwin,  31  Conn.  74. 

c.    Death  of  Trustee  or  Cestui  Q,ue  Trust. 

28.  Where  does  the  title  to  the  trust  property  go  when  the  trustee 
dies  intestate? 

As   a  rule,  trust  property   is   vested  jointly   in   two   or   more 
persons,  so  that  on  the  death  of  one   the  remaining  trustees  take 
the  title  by  survivorship.     When,  however,  a   sole  trustee  dies 
intestate,  the  title  descends  to  his  heir,  or  to  his  personal  repre-, 
30 


466  QUESTIONS  AND  ANSWERS. 

eentative  if  the  trust  res  is  personalty.  1  Perry  on  Trusts,  §  343, 
It  is,  of  course,  still  subject  to  the  rights  of  the  cestui,  the  new 
holder  having  paid  no  value. 

In  a  few  States,  Alabama  and  New  York  among  them,  the  title- 
vests  in  the  court  in  such  a  case. 

When  the  trustee  leaves  a  will,  the  question  becomes  simply  one  of 
Intention,—  "  Did  he  mean  to  include  the  trust  property  or  not  2  "  1 
Perry  on  Trusts,  fc  335.  The  devisee,  like  the  heir  of  an  intestate 
trustee,  is  constructive  trustee,  and  holds- the  property  exactly  as 'the 
deceased  held  it 

29.  What  happens  when  the  cestui  dies  intestate? 

Although,  strictly  speaking,  the  equitable  estate  is  only  a  per- 
sonal claim  against  the  trustee,  an  equitable  chose  in  action,  yet, 
equity  follows  the  law,  and  the  rules  applicable  to  the  descent  or 
distribution  of  the  legal  title  of  any  trust  property  govern  also  the 
disposition  of  the  equitable  interest  when  its  owner  dies;  in  short, 
if  the  trust  res  is  realty,  the  heir-at-law  of  the  cestui  takes,  and  *f  it 
is  personalty,  the  administrator  succeeds  to  the  rights  of  the  de- 
ceased. See  Freedman's  Co.  v.  Earle,  110  U.  S.  710,  713. 

30.  Does  the  wife  (a)  of  a  trustee,  or  (6)  of  a  cestui,  have  dower 
rights  ? 

The  wife  of  a  trustee  does  not  have  them.  White  v.  Drew,  42  Mo. 
501:  Greene  v.  Greene,  1  Ohio,  535,  542.  (Nor  the  husband  cur- 
tesy  when  his  wife  was  trustee.  King  v.  Bushell,  121  111.  656.) 

The  wife  of  a  deceased  cestui  que  trust,  however,  now  enjoys 
dower  rights,  almost  everywhere,  though  originally  she  was  denied 
'them.  1  Perry  on  Trusts,  §  324;  Barnes  v.  Gay,  7*  Iowa.  26.  (The 
husband  also  has  curtesy.  Tillinghast  v.  Coggeshall,  7  B.  I.  383, 
394.) 

d.    Bankruptcy. 

31.  Trustee  bankrupt.     Do  his  assignees  get  the  title  to  the 
trust  property  ? 

No.  It  has  been  long  settled,  that  they  do  not.  Ehoades  v. 
Blackiston,  106  Mass.  334;  Kip  v.  Bank,  10  Johns.  (N.  Y.)  63.  Nor 
do  the  assignees  of  a  bankrupt  executor  take  the  goods  of  the 
deceased.  Farr  v.  Newman,  4  Term  Eep.  629. 

32.  Suppose  a  cestui  que  trust  becomes  bankrupt.     Property 
his   been  given   to   trustees    for   the   life   of    this   beneficiary, 
with  the  provision   that  the  "  profits  shall  be  paid  into  the  cestui's- 
own  hand,  in  order  to  render  his  interest  nonassignable."     Can 
creditors  reach  this? 

This  is  called  a  "  spendthrift  trust,"  and  the  authorities  are  at 
variance  as  to  the  rights  of  creditors  of  the  cestui.  The  English 


TRUSTS.  467 

courts  and  those  of  many  States  hold  that  creditors  can  reach  the 
property,  because  the  beneficiary  took  it  with  its  natural  incidents, 
including  the  power  of  alienation,  in  spite  of  the  language  by  which 
the  trust  was  created.  Brandon  v.  Robinson,  18  Ves.  429;  Tilling- 
hast  v.  Bradford  5  R,  I.  205;  Hobbs  v.  Smith,  15  Ohio  St.  419. 

Other  States,  led  by  Massachusetts,  hold  that  a  testator  has  the 
right  to  leave  the  property  with  any  conditions  he  .may  see  fit; 
and  that,  therefore,  he  can  give  a  life  interest  in  the  enjoyment  of 
the  proceeds  of  property,  withholding  other  usual  property  rights 
in  it.  Broadway  Bank  v.  Adams,  133  Mass.  170;  Meek  v.  Briggs, 
87  Iowa,  610;  Barnes  v.  Dow,  59  Vt.  530. 

Even  in  Massachusetts,  a  clear  Intention  to  withhold  the  power  of 
alienation  from  the  beneficiary  is  necessary.  Maynard  v.'  Cleaves,  149> 
Mass.  307. 

In  New  York  and  some  other  States  such  a  beneficiary,  though  bank- 
rupt, is  entitled  as  against  his  creditors  to  a  sufficient  income  to  support 
him  in  a  condition  "  suitable  to  his  station  in  life."  Tolles  v.  Wood, 
99  X.  Y.  616.  On  whole  subject,  see  Gray,  Restraints  on  Alienation, 
§§  134-277,  a. 

VII.     ADMINISTRATION  OF  A  TRUST. 
a.     In  General. 

33.  Give  some  illustrations  to  show  that,  so  far  as  the  legal 
title  is  concerned,  the  trustee  is  the  only  person  recognized  as  the 
owner  of  the  property. 

When  the  Statute  of  Limitations  has  run  against  a  claim,  held 
for  the  cestui  by  the  trustee,  the  cestui  is  also  barred,  though  an 
infant  or  under  other  disability.  Wyck  v.  East  India  Co.,  3  P. 
Wms.  309;  Meeke  v.  01pherts,'lOO  U.  S.  564. 

The  trustee  is  the  one  to  vote  on  shares  of  stock  held  in  trust. 
Re  Jacob  Barker,  6  Wend.  (N.  Y.)  509. 

He  is  the  one  to  be  assessed  for  taxes;  Latrobe,  Trustee,  v.  Mayor, 
etc.,  of  Baltimore,  19  Md.  13;  and  to  be  sued;  e.  g.,  for  a  nuisance. 
Schwab  v.  Cleveland,  28  Hun  (N.  Y.),  458. 

34.  What  is  the  duty  of  the  trustee  as  to  care  of  the  trust  res, 
investment,  etc.? 

The  trustee  is  bound  only  to  use  "ordinary"  care  in  his  man- 
agement of  the  property. 

Where  property  is  given  him  "  to  invest,"  the  law  lays  down 
a  rather  narrow  limit  beyond  which  he  cannot  go;  some  States 
prohibiting  railroad  stocks.  King  v.  Talbot,  40  N".  Y.  76  (contra, 
Dickinson,  Appellant.  152  Mass.  184).  Loans  on  mere  personal 
security  are  pcarcelv  ever  iustifinhle.  Yrepland  v.  Schoonmaker, 
16  N.  J.  Eq.  512,  530;  Clark  v.  Garfield,  8  Allen,  427.  In  all  cases, 


4G8  QUESTIONS  AND  ANSWERS. 

when  it  once  appears  that  there  has  been  a  breach  of  trust,  the 
trustee  becomes  liable  for  loss  from  any  cause.  1  Perry  on  Trusts, 
§  444. 

Temporary  deposits  in  banks  have  raised  similar  questions,  the  set- 
tlement of  which  emphasize  the  delicate  nature  of  the  fiduciary  rela- 
tion between  the  cestui  and  the  trustee. 

It  is  held,  that  a  deposit  in  the  trustee's  own  name,  even  for  a  shott 
time,  renders  him  liable  for  any  loss;  In  re  Arguello,  97  Cal.  196;  State 
T.  Greensdale,  106  Ind.  364;  that,  while  a  deposit  as  trustee  is  proper, 
it  will  become  a  breach  of  trust  if  allowed  to  remain  a  long  time;  Cann 
v.  Cann,  33  Week.  Rep.  40  (fourteen  months);  Barney  v.  Saunders,  16 
How.  535,  545  (ten  months),  since  this  is  practically  a  loan  to  the  Dank; 
and  that  any  mingling  of  the  trust  property  with  his  personal  funds 
will  entail  the  same  liability.  1  Perry  on  .Trusts,  §§  447,  463.  Statutes 
generally  point  out  what  are  .proper  investments  for  trustees. 


35.  Suppose  a  trust  estate  is  sold  by  auction.     Can  the  trus- 
tee bid? 

No.  The  fact  that  each  bidder  stimulates  the  competition  is  off- 
set by  the  possibility  of  collusion.  The  general  principle  is  that  a 
person  acting  in  a  fiduciary  capacity  must  not  bring  his  interest 
into  collision  with  that  of  the  beneficiary.  The  former  has  so 
much  advantage  from  his  position  that  the  law  protects  him  from 
temptation.  Marsh  v.  Whitmore,  21  Wall.  (N.  Y.)  178;  Fulton  v. 
Whitney,  66  N.  Y.  548. 

"b.     Remedies. 

36.  By  what  kind  of  proceeding  can  a  cestui  proceed  against 
a  delinquent  trustee? 

In  general,  only  by  a  bill  in  equity;  and  this  is  to  be  preferred, 
even  if  the  courts  of  common  law  had  jurisdiction,  on  account  of 
its  flexibility.  2  Perry  on  Trusts,  §  843. 

An  action  at  law  for  money  had  and  received  will  lie,  however, 
<1)  where  a  sum  of  money  has  been  collected  by  the  trustee  and  he  ac- 
knowledges that  it  is  held  for  the  cestui.  The  trustee  there  practically  be- 
comes a  debtor  as  to  that  amount.  Topham  v.  Morecraft,  8  E.  &  B. 
072;  Boughton  v.  Flint,  74  N.  Y.  476,  481.  (2)  A  fortiori,  when  a  final 
account  is  rendered  by  the  trustee.  Johnson  v.  Johnson,  120  Mass.  465. 
(3)  Where  the  trust  is  one  of  money,  e.  g.,  where  A.  puts  funds  in  B.'s 
hands  to  pay  A.'s  creditors.  Putnam  v.  Field,  103  Mass.  556;  Phelps 
T.  Conant,  30  Vt.  277.  283. 

In  all  these  cases,  the  plaintiff  may,  of  course,  proceed  by  a  bill  in 
equity,  if  he  chooses.  Hooper  v.  Holmes,  11  N.  J.  Eq.  122. 


469 

37.  suppose  the  trustee  is  out  of  the' jurisdiction  so  inai  Ke 
cannot  be  served  with  process? 

This  presents  no  obstacle  to  the  success  of  the  cestui,  provided 
the  trust  .res  is  in  the  jurisdiction  of  the  court;  for,  although  for- 
merly the  court  was  powerless  in  such  a  case,  on  account  of  its 
decrees  being  in  personam  only,  it  is  now  enabled,  by  a  statutory 
extension  of  the  principle  that  equity  will  not  suffer  a  trust  to  fail 
for  lack  of  a  trustee,  to  appoint  a  new  trustee  to  carry  out  the 
duties  of  the  absent  one.  Felch  v.  Hooper,  119  Mass.'  52;  Arndt 
v.  Griggs,  134  TJ.  S.  316. 

If  the  trustee  is  within  the  jurisdiction,  but  the  trust  res  outside, 
there  is  no  difficulty.  It  is  a  case  of  the  normal  operation  of  the 
rule  that  equity  acts  upon  the  person.  The  trustee  must  obey  the 
decree,  wherever  the  property  is  situated,  or  be  punished  for  con- 
tempt of  court.  Earl  of  Kildare  v.  Eustace,  1  Vern.  405,  419; 
Cole  v.  Cunningham,  133  U.  S.  107,  116. 

38.  Suppose  there  is  a  third  person  involved  in  the  breach  of 
trust  for  which  relief  is  sought,  e.  g.,  a  purchaser,  with  notice  of 
the  trust.     What  is  the  proceeding  there? 

Under  the  general  rule,  that  since  the  trustee  holds  the  legal 
title  to  the  trust  property  the  cestui  must  work  out  his  rights 
through  him,  the  bill  would  necessarily  allege  the  refusal  or  ina- 
bility of  the  trustee  to  bring  suit  against  such  purchaser,  and  then 
ask  a  reconveyance  from  the  piirchaser  to  the  cestui  himself  (or  to 
a  new  trustee,  if  the  trust  were  a  continuing  one).  R.  R.  Co.  v. 
Nolan,  48  K  Y.  517. 


39.  Suppose  the  cestui  prefers  not  to  follow  the  trust  property 
into  the  hands  of  the  third  party,  as,  for  instance,  if  trust  prop- 
erty, worth  $5.000  has  been  sold  for  $6,000.  Can  the  trustee 
retain  the  $1,000? 

Clearly  not.  The  rule  is  'strictly  applied,  that  the  trustee  shall 
make  nothing  by  the  breach  of  his  duty.  All  profits  coming  to 
the  trustee  from  his  dealings  with  the  trust  res  inure  to  the 
benefit  of  the  cestui.  Perry  on  Trusts,  §  427;  Barney  v.  Saunders, 
16  How.  535,  542. 

When  the  loss  is  of  money,  the  rule  is  usually  to  compute  interest 
at  the  highest  legal  rates,  and  for  a  loss  in  speculation  or  trade,  com- 
pound interest  is  reckoned.  McKnight  v.  Walsh,  23  N.  J.  Eq.  136;  2 
Story  Eq.  Jur.  1277,  1278.  This  is,  of  course,  in  case  the  cestui  elect? 
to  sue  for  the  breach  of  trust,  rather  than  for  the  original  res  with  the 
profits  it  has  actually  gained. 


470  QUESTIONS  AND  ANSWERS. 

40.  What  rules  prevail  in  equity,  in  regard  to  the  running  of 
the  Statute  of  Limitations,  as  between  the  trustee  and  the  cestui 
que  trust? 

There  is  'a  vast  mass  of  more  or  less  conflicting  decisions  on  the 
subject,  but  the  leading  principles  seem  to  be  as  follows : 

1.  The  statute  has  no  application  to  express  trusts,  for  the 
trustee  does  not  hold  adversely  to  the  cestui.     Perry  on  Trusts, 
§  863.  citing  a  multitude  of  cases.     But  the  trust  must  be  clearly 
established,  and  a  great  lapse  of  time  may  so  affect  the  proof  of 
its  existence  and  character,  that  equity  will  refuse  relief.    2  Story 
Eq.  Jur.  1520a,  (13th  ed.k   Prevost  v.  Gratz,  6  Wheat.  (U.  S.) 
481. 

2.  Where  the  trust  is  constructive  (except  as  in  (3),  infra),  or 
where  law  and  equity  have  concurrent  jurisdiction,  the  rule  is  that 
equity  follows  the  law;  the  legal-  bar  is  conclusive.     Williams  v. 
McKay,  40  N.  J.  Eq.  190, 197;  Kane  v.  Bloodgood,  7  Johns.  (N.  Y.) 
90  (a  general  discussion  by  Chancellor  Kent). 

3.  If  the  cause  of  action  has  been  concealed  through  a  fraud,  in- 
volving moral  turpitude,  the  statute  will  not  run  in  equity,  till  the 
injured  party  has  discovered  it   or  would  have  done  so,  if  he  had 
exercised  proper  diligence.     Gibbs  v.  Guild,  9  Q.  B.  Div.  59;  Troup 
v.  Smith,  20  Johns.  (N.  Y.)  32,  47.     This  rule  has  been  held  to 
apply,  even  in  cases  where  a  concurrent  remedy  which  had  existed 
at  law    has  been  barred.     Gibbs  v.   Guild,  supra;  Sherwood  v. 
Sutton,  5  Mason,  143.    And  see  1  Perry  on  Trusts,  §  230. 

4.  An  actual  repudiation  of  his  duty  by  a  trustee  (even  in  an 
express  trust),  brought  distinctly  to  the  knowledge  of  the  cestui, 
vill  start  the  statute.     Philippfv.  Philippi,  115  tJ.  S.  151;  Mer- 
riam  v.  Hassam.  96  ^lass.  516. 


PLEADING   AND    PRACTICE    UNDER   NEW  YORK 
CODE  OF  CIVIL  PROCEDURE. 


I.  PLEADINGS. 

a.      Summons. 

1.  What  facts  are  essential  to  give  a  court  jurisdiction? 

Jurisdiction  is  the  right  to  adjudicate,  concerning  the  subject- 
matter  in  a  given  case.  "To  constitute  this,  there  are  three  es- 
sentials :  first,  the  court  must  have  cognizance  of  the  class  of  cases 
to  which  the  one  to  be  adjudged  belongs;  second,  the  proper  par- 
ties must  be  present  actually,  or  by  service;  and  third,  the  matter 
decided  must  be  in  substance  and  effect,  within  the  issue."  Bishop, 
Code  Practice,  §  116. 

2.  How<  is  a  civil  action  in  a  court  of  record  commenced  ?• 

A  civil  action  is  commenced  by  service  of  a  summons.  But  from 
the  time  of  the  granting  of  a  provisional  remedy  the  court  acquires 
jurisdiction  and  has  control  of  all  the  subsequent  proceedings. 
This  latter  mode  of  acquiring  jurisdiction  is,  however,  conditional 
and  liable  to  be  divested  in  a  case  where  the  jurisdiction  is  made 
dependent  upon  some  act  to  be  done  after  the  granting  of  the 
provisional  remedy.  The  summons  is  deemed  the  mandate  of  the 
court.  Code  Civ.  Pro.,  §  416. 

3.  What  are  the  requisites  of  a  summons  in  a  civil  action? 

The  summons  must  contain  the  title  of  the  action,  specifying  the 
court  in  which  the  action  is  brought,  the  names  of  the  parties  to 
ihe  action,  and  if  it  is  brought  in  the  Supreme  Court,  the  name 
of  the  county  in  which  the  plaintiff  desires  trial,  and  it  must  be 
subscribed  by  the  plaintiff's  attorney,  who  must  add  to  his  signature 
his  office  address,  specifying  a  place  within  the  State  where  there 
is  a  post-office.  If  in  a  city,  he  must  add  the  street  and  street 
number  or  other  suitable  designation  of  the  particular  locality. 

There  are  special  requirements  in  the  form  of  the  summons  In  two 
classes  of  cases. 

1  In  actions,  either  by  the  people  or  by  a  private  person,  to  re- 
cover a  penalty  or  forfeiture,  given  by  a  statute,  if  a  copy  of  the  com- 
plaint is  not  delivered  to  the  defendant  with  a  copy  of  the  summons, 

NOTE — The  questions  of  this  chapter  are  answered  on  the  authority  of  tneNewYork 
Code  of  1908. 

[471] 


472  QUESTIONS  AND  ANSWERS. 

a  general  reference  to  the  statute  must  be  indorsed  upon  the  oor>v 
of  the  summons  so  delivered  in  the  following  form :  "  According  to  the 
provisions  of,"  etc.,  describing  the  statute  and  specifying  the  section, 
if  different  sections  thereof  impose  forfeitures  or  penalties  for  different 
acts.  Code  Civ.  Pro.,  §  1897.  People  v.  O'Neil,  54  Hun  (N.  Y.),  610. 
Where  the  action  is  brought  by  a  common  informer,  the  summons  must 
be  served  by  an 'officer  authorized  by  law  to  collect  on  execution  issued 
out  of  the  same  court  and  such  officer  must,  immediately  after  service, 
file  it  with  his  certificate  of  service  with  the  clerk  of  the  court  or  the 
magistrate  who  issued  it,  as  the  case  requires.  Such  a  summons,  once 
issued,  cannot  be  countermanded  by  the  plaintiff  before  service.  Code 
Civ.  Pro.,  §  1895. 

2.  In  matrimonial  actions,  except  where  the  summons  and  a  copy  of 
the  complaint  are  personally  served  upon  the  defendant,  final  judgment 
cannot  be  entered  in  favor  of  plaintiff  on  defendant's  default,  unless 
the  copy  of  the  summons  served  contains  legibly  written  or  printed 
upon  the  face  thereof :  "Action  to.  annul  a  marriage ;"  "  action  for  a 
divorce ;"  or,  "  action  for  separation,"  as  the  case  may  be,  or  words 
to  the  same  effect.  The  certificate  or  affidavit  of  service  must  affirm- 
atively show  a  compliance  with  this  requirement  and  set  forth  a  copy 
of  the  words  so  added  to  the  summons.  Code  Civ.  Pro.,  §  1774. 

A  summons  may  be  served  either  alone  or  with  a  copy  of  the  com- 
plaint, or  with  a  notice  stating  for  what  sum  judgment  will  be  taken 
in  case  of  the  default  of  the  defendant  in  appearing  and  answering.  If 
the  action  is  for  a  sum  certain,  and  the  complaint  is  not  served  with 
the  summons,  such  a  notice  should  always  be  added  to  the  summons, 
as  it  enables  the  plaintiff,  in  case  of  default,  to  have  judgment  en- 
tered by  the  clerk  of  the  court  for  the  amount  specified  in  the  notice. 
If  the  summons  is  served  alone,  and  the  defendant  does  not  appear, 
the  claim  must  be  proved  in  court  or  before  a  justice  thereof  or  a  ref- 
eree. Code  Civ.  Pro.,  §§  419,  1212,  1214,  1215. 

But  in  order  to  entitle  a  plaintiff  to  take  judgment  by  default,  for  the 
amount  named  in  the  notice  or  demanded  in  the  complaint,  the  cause 
of  action  must  be  for  a  sum  certain  or  capable  of  calculation,  arising 
on  a  contract,  express  or  implied.  Code  Civ.  Pro.,  §  420. 

The  form  of  a  summons  is  as  follows: 

SUPREME  COURT  —  NEW  YORK  COUNTY  : 


JOHN  DOE,  Plaintiff, 

against 
RICHARD  ROE,  Defendant. 


Summons — With  Notice. 


To  the  above-named  Defendant: 

You  are  hereby  summoned  to  answer  the  complaint  in  this  action, 
and  to  serve  a  copy  of  your  answer  on  the  plaintiff's  attorney  withiu 


PLEADING  AND  PRACTICE  UNDER  NEW  YORK  CODE.      473 

twenty  days  after  the  service  of  this  summons,  exclusive  of  the  day  of 
service,  and  in  case  of  your  failure  to  appear,  or  answer,  judgment  will 
be  taken  against  you  by  default  for  the  relief  demanded  in  the  com- 
plaint. 
Datei  March  15,  1908. 

JOHN  S.  WOODRUFF, 

Plaintiffs  Attorney. 
Post-office  address  and  office,  No.  45  Broadway,  New  York  city. 

NOTICE. —  Take  notice,  that  upon  your  default  to  appear  or  answer  the 
above  summons,  judgment  will  be  taken  against  you  for  the  sum  of  five 
hundred  (500)  dollars,  with  interest  from  September  5,  1896,  and  with, 
costs  of  this  action. 

JOHN  S.  WOODRUFF, 

Plaintiff's  Attorney. 
Code  Civ.  Pro.,  §§  417,  418. 

4.  What  is  the  necessary  procedure  in  bringing  an  action  against 
a  defendant  whose  name  is  unknown  in  part  or  in  whole? 

Where  the  plaintiff  is  ignorajit  of  the  name  or  part  of  the  name 
of  a  defendant,  he  may  designate  that  defendant,  in  the  summons; 
and  in  any  other  process  or  proceeding  in  the  action,  by  a  fictitious, 
name,  or  by  as  much  of  his  name  as  is  known,  adding  a  description, 
identifying  the  person  intended.  Where  the  plaintiff  demands 
judgment  against  an  unknowji  person,  he  may  designate  that  per- 
son as  unknown,  adding  a  description  tending  to  identify  him. 
When  the  name,  or  the  remainder  of  the  name,  of  the  person  be- 
comes known,  an  order  must  be  made  by  the  court,  upon  such 
notice  and  such  terms  as  it  prescribes,  that  the  proceedings  al- 
ready taken  be  deemed  amended,  by  the  insertion  of  the  true  name, 
in  place  of  the  fictitious  name  or  part  of  name,  or  the  designation 
as  an  unknown  person;  and  that  all  subsequent  proceedings  be 
taken  under  the  true  name.  Code  Civ.  Pro.,  §  451. 

5.  What  course  should  be  pursued  where  a  man  is  made  a  party 
of  record,  but  no  personal  claim  is  made  against  him  ? 

Where  a  personal  claim  is  not  made  against  a  defendant,  a  notice, 
subscribed  by  the  plaintiff's  attorney,  setting  forth  the  general  ob- 
ject of  the  action,  a  brief  description  of  the  property  affected  by  it, 
if  it  affects  specific  real  or  personal  property,  and  that  a  personal 
claim  is  not  made  against  him,  may  be  served  with  the  summons. 
If  the  defendant  so  served  unreasonably  defends  the  action,  costs 
may  be  awarded  against  him.  Code  Civ.  Pro.,  §  423. 

6.  Who  may  serve  a  summons? 

The  summons  may  be  served  by  any  person,  other  than  a  party 
to  the  action,  except  where  it  is  otherwise  specially  prescribed  by 
law.  Code  Civ.  Pro.,  §  425.  For  one  such  exception,  see  Code  Civ. 


474  QUESTIONS  AND  ANSWERS. 

Pro.,  §  1895,  and  Ques.  3  (supra).  Personal  service  of  a  summons 
can  be  made  only  bj  a  person  eighteen  years  of  age  or  upwards. 
Genl.  Rules  Prac.  18. 

7.  Draw  an  affidavit  of  service  of  a  summons  and  a  copy  of 
complaint. 

Court. 

County. 


JOHN  DOE,  Plaintiff, 

against 
RICHARD  ROE.  Defendant. 


>  Affidavit  of  Service  of  Summons  and 
Complaint. 


COUNTY  OF  NEW  YORK,  ss. : 

John  H.  Jones,  being  duly  sworn,  says  that  he  is  a  clerk  in  the 
office  of  James  Smith  and  is  twenty-three  years  of  age;  and  that 
on  the  10th  day  of  April,  1897,  at  846  Broadway,  borough  of 
Manhattan,  city  of  New  York,  he  served  the  summons  in  this  ac- 
tion, a  copy  whereof  is  hereto  annexed,  together  with  a  copy  of  the 
complaint  therein  mentioned,  upon  R*ichard  Roe,  the  defendant  in 
this  action,  by  delivering  copies  of  the  same  to  such  defendant, 
personally,  and  leaving  the  same  with  him.  He  further  says,  that 
he  knew  the  person  served,  as  aforesaid,  to  be  the  person  mentioned 
and  described  in  said  summons  as  the  defendant  in  this  action. 

JOHN  H.  JONES. 
Sworn  to  before  me,  this  llth  day 
of  April,  1898. 
ALFRED  M.  BLACK, 

Notary  Public  (110),  17 ew  York  County. 

For  the  necessary  allegations  in  an  affidavit  of  service  of  sum- 
mons and  complaint  in  matrimonial  actions,  see  §  124,  Bishop, 
Code  Practice,  and  Genl.  Rules  Prac.  18. 

8.  How  may  a  party,  leaving  the  State,  provide  for  tlie  service 
of  papers  in  suits  prosecuted  against  him  during  his  absence? 

When  a  resident  of  the  State  of  full  age  is  about  to  leave  the 
State,  he  may  execute  and  file  with  the  clerk  of  the  county  where 
he  resides,  a  written  designation  of  another  resident  of  the  State 
as  a  person  on  whom  may  be  served  papers  for  the  commencement 
of  a  civil  proceeding  against  him  during  his  absence.  -Such-  designa- 
tion must  be  properly  acknowledged  and  accompanied  by  the  written 
consent  of  the  person  designated,  also  properly  acknowledged.  The 


PLEADING.  AND  PRACTICE  UNDER  NEW  YORK  CODE.      4To 

occupation  and  residence  of  both  parties  must  be  stated,  and  such 
designation  remains  in  force  for  three  years,-  if  no  other  period  is 
stated  therein,  notwithstanding  the  return  to  the  State  of  the  per- 
son making  it.  Service  made  on  the  person  so'  designated  has  the 
same  effect  as  though  made  on  the  person  making  the  designation 
(if  no  period  is  stated,  notwithstanding  the  return  of  the  person 
designating  to  the  United  States).  It  may  be  revoked  at  any  t'ime 
by  either  party,  and  is  revoked  of  necessity  by  the  death  or  incom- 
petency  of  either  one  of  them.  Code  Civ.  Pro.,  §  430. 

9.  How  may  service  of  a  summons  be  made  upon  a  domestic 
corporation? 

Personal  service  of  the  summons  upon  a  defendant,  being  a 
domestic  corporation,  must  be  made  by  deliveting  a  copy  thereof, 
within  the  State,  as  follows: 

1.  If  the  action  is  against  the  mayor,  aldermen,  and  commonalty 
of  the  city  of  New  York,  to  the  mayor,  comptroller,  or  counsel  to. 
the  corporation. 

2..  If  the  action  is  against  any  other  city,  to  the  mayor,  treasurer, 
counsel,  attorney,  or  clerk;  or,  if  the  city  lacks  either  of  those 
officers,  to  the  officer  performing  corresponding  functions,  under 
another  name. 

3.  In  any  other  case,  -to  the  president  or  other  head  of  the  cor- 
poration, the  secretary  or  clerk  to  the  corporation,  the  cashier, 
the  treasurer,  or  a  director  or  managing  agent.  Code  Civ.  Pro., 
§  431 ;  Greater  New  York  Charter,  §  263. 

10.  How  may  service  of  a  summons  be  made  upon  a  foreign 
corporation? 

Personal  service  of  the-  summons,  upon  a  defendant,  being  a 
foreign  corporation,  must  be  made  by  delivering  a  copy  thereof, 
within  the  State,  as  follows: 

1.  To  the  president,  vice-president,  treasurer,  assistant  treasurer, 
secretary,  or  assistant  secretary;  or,  if  the  corporation  lacks  either 
of  those  officers,  to  the  officer  performing  corresponding  functions, 
under  another  name. 

2.  To  a  person  designated  for  the  purpose  by  a  writing,  under 
the  seal  of  the  corporation,  and  the  signature  of  its  president,  vice- 
president,  or  other  acting  head,  accompanied  with  the  written  con- 
sent of  the  person  designated,  and  filed  in  the  office  of  the  Secre- 
tary of  State.     The  designation  must  specify  a  place  within  the 
State  as  the  office  or  residence  of  the  person  so  designated. 

3.  If  such  a  designation  is  not  in  force,  or  if  neither  the  person 
designated,  nor  an  officer  specified  in  the  first  subdivision  of  this 
section,  can  be  found  with  due  diligence,  and  the  corporation  has 
property  within  the  State,  or  the  cause  of  action  arose  therein ;  to 
the  cashier,  a  director,  or  a  managing  agent  of  the  corporation 
within  the  State.    Code  Civ.  Pro.,  §  435. 


476  QUESTIONS  AND  ANSWERS. 

11.  What  substitutes  are-there  for  personal  service  of  a  summons? 

(1)  Substituted  service.     Where  a  summons  is  issued  in  any 
court  of  record,  an  order  for  its  service  upon  a  resident  defendant 
may  be  made  upon  proof  by  affidavit  of  a  person  not  a  party  to 
the  action  or  by  the  return  of  the  sheriff  of  the  county  where  the 
defendant  resides,  that  diligent  effort  has  been  made  to  serve  the 
summons  on  the  defendant,  and  that  the  place  of  his  sojourn  can- 
not be  ascertained,  or,  if  he  is  within  the  State,  that  he  avoids  ser- 
vice, so  that  personal  service  cannot  be  made.     In  such  a  case,  the 
order  must  direct  service  of  the  summons  by  leaving  a  copy  thereof, 
and  of  the  order  at  the  residence  of  the  defendant,  with  a  person 
of  proper  age;  or  if  admittance  cannot  be  obtained  nor  such  per- 
son found  to  receive  it,  by  affixing  the  same  to  the  defendant's  door 
and  by  depositing  another  copy  thereof  in  the  post-office  of  the 
place  where  the  defendant  resides,  postpaid,  addressed  to  him  at 
his  residence;  or,  upon  proof  that  no  such  residence  can  be  found, 
service  of  the  summons  may  be  made  in  such  manner  as  the  court 
may  direct.     Service  must  be  made  and  the  order  and  affidavits 
filed  within  ten  days  after  the  order  is  granted ;  otherwise  the  order 
becomes  inoperative.     On  the  filing  of  an  affidavit  showing  service 
according  to  the  order,  the  summons  is  deemed  served.     Code  Civ, 
Pro.,  §§  435-437.     This  order  may  be  granted  by  the  court  or  a 
judge  thereof. 

( 2 )  Service  by  pub lica tion  or  w itli  out  th e  State.   An  order  for  such 
service  may  be  made  in  the  cases  specified  in  section  438  of  the   Code 
of  Civil  Procedure.     The  most  usual  cases  are  those  where  the  de- 
fendant is  not  a  resident  of  the  State,  or  is  a  foreign  corporation; 
and  those  where  he  has  left  the  State  or  concealed  himself -therein 
with  intent  to  defraud  his  creditors  or  to  avoid  service.     The  order 
must  6e  founded  on  a  verified  complaint  stating  a  cause  of  action, 
and  on  affidavits  proving  the  facts  required  by  sections  438  and  43£> 
of  the  Code.     The  order  must  direct  that  the  summons  be  published 
in  two  newspapers  designated  by  the  judge  at  least  once  a  week 
for  six  successive  weeks,  accompanied  by  a  notice  in  the  following 
form: 

"  To  :  The  foregoing  summons  is  served  upon  you, 

by  publication,  pursuant  to  an  order  of  "  (naming 

the  judge  and  his  official  title)  "dated  the  day  of 

19     ,  and  filed  with  the  complaint,  in  the  office  of  the  clerk  of 
at 

The  order  must  also  direct  service  of  the  summons,  complaint, 
and  a  copy  of  the  order  on  the  defendant  personally  without  the 
State,  at  the  plaintiff's  option,  instead  of  publication,  in  which  case 
a  notice  must  be  served  with  the  summons  similar  to  the  above  save 
that  the  words  "  without  the  State  of  New  York  "  must  be  sub- 
stituted for  the  words  "  by  publication."  The  order  must  also  con- 
tain a  direction  that,  on  or  before  the  day  of  first  publication,  the 
deposit  in  a  specified  post-office  one  or  more  sets  of  the 


PLEADING  AND  FIJACTICE  UNDER  XEW  YORK  CODE.      477 

summons,  complaint,  and  order,  postpaid  and  directed  to  the  de- 
fendant at  a  place  therein 'specified;  or  else  a  statement  that  the 
judge,  being  satisfied  by  the  affidavits  upon  which  the  order  was 
granted,  that  the  plaintiff  cannot,  with  reasonable  diligence,  as- 
certain a  place  or  places,  where  the  defendant  would  probably  re- 
ceive matter  transmitted  through  the  post-office,  dispenses  with  the 
deposit  of  any  papers  therein. 

The  summons,  complaint  order,  and  papers  upon  which  the  order 
was  granted  must  be  filed  with  the  clerk  before  the  service  or  first 
publication ;  and  service  must  be  made  without  the  State,  or  publi- 
cation begun,  as  the  case  may  be,  within  three  months  after  the 
order  is  granted. 

For  detailed  provisions,  see  Code  Civ.  Pro.,  §§  435-445.  See 
also  Bishop,  Code  Practice,  §  130. 

b.      Complaint. 

12.  What  is  the  first  pleading  on  Hie  part  of  the  plaintiff,  and 
what  must  it  contain? 

The  plaintiff's  first  pleading  is  the  complaint,  and  it  must  con- 
tain: 

1.  The  title  of.  the  action,  specif ying  the  name  of  the  court  in 
•which  it  is  brought;  if  it  i?  brought  in  the  Supreme  Court,  the 
name  of  the  county  which  the  plaintiff  designates  as  the  place  of 
trial,  and  the  names  of  all  the  parties  to  .the  action,  plaintiff  and 
defendant. 

2.  A  plain  and  concise  statement  of  the  -facts-  constituting  each 
cause  of  action,  without  unnecessary  repetition. 

3.  A  demand  of  the  judgment  to  which  the  plaintiff  supposes 
himself  entitled.     Code  Civ.  Pro.,  §§  478,  481. 

13.  How  many,  and  what  causes  of  action,  may  le  joined  in 
the  same  complaint? 

The  complaint  may  set  forth  two  or  more  causes  of  action,  but 
the  statement  of  the  facts  constituting  each  cause  of  action  must 
be  separate  and  numbered. 

The  plaintiff  may  unite  two  or  more  of  the  following  causes  of 
action  in  the  same  complaint  (whether  they  are  legal  or  equitable) 
where  they  are  brought  to  recover : 

1.  Upon  contract,  express  or  implied. 

2.  Upon  personal  injuries,  except  libel,  slander,  criminal  conver- 
sation or  seduction. 

3.  For  libel  or  slander. 

4.  For  injuries  to  real  property. 

5.  Real  property  in  ejectment  with  or  without  damages  for  the 
withholding  thereof. 

6.  For  injuries  to  personal  property. 

7.  Chattels  with  or  without  damages  for  the  taking  or  detention 
thereof. 


478  QUESTIONS  AND  ANSWERS. 

8.  Upon  claims  against  a  trustee,  by  virtue  of  a  contract  or  by 
operation  of  law. 

9.  Upon  claims  arising  out  of  the  same  transaction  or  transac- 
tions connected  with  the  same  subject  of  action,  and  not  included 
in  one  of  the  above  subdivisions. 

But  it  must  appear  on  the  face  of  the  complaint  (1)  that  all  the 
causes  of  action  so  united  belong  to  one  of  the  foregoing  subdivi- 
sions; (2)  that  they  are  consistent  with  each  other;  (3)  that  they 
do  "not  require  different  places  of  trial;  -(4)  and  that,  except  as 
otherwise  prescribed  by  law,  they  affect  all  the  parties  to  the  action. 
Code  Civ.  Pro.,  §§  483,  484.  As  to  the  joinder  of  causes  of  action 
as  against  an  executor  or  administrator  in  his  representative 
capacitv  with  causes  of  action  against  him  personally,  see  Code  Civ. 
Pro.,  §  J815. 

c.     Verification. 

14.  Who  may  verify  a  pleading?  Draw  a  verification  of  a  com- 
plaint made  by  an  attorney  upon  information  and  belief. 

The  verification  must  be  made  by  the  affidavit  of  the  party,  or, 
if  there  are  two  or  more  parties  united  in  interest,  and  pleading 
together,  by  at  least  one  of  them,  who  is  acquainted  with  the  facts, 
except  as  follows: 

1.  Where  the  party  is  a  domestic  corporation,  the  verification 
must  be  mad$  by  an  officer  thereof. 

2.  Where  the  people  of  the  State  are,  or  a  public  officer,  in  their 
behalf,  is  the  party,  the  verification  may  be  made  by  any  person 
acquainted  with  the  facts. 

,3.  Where  the  party  is  a  foreign  corporation;  or  where  the  party 
is  not  within  the  county  where  the  attorney  resides,  or  if  the.  latter 
is  not  a  resident  of  the  State,  the  county  where  he  has  his  office, 
and  capable  of  making  the  affidavit;  or,  if  there  are  two  or  more 
parties  united  in  interest,  and  pleading  together,  where  neither  of 
them,  acquainted  with  the  facts,  is  within  that  county,  and  capable 
of  making  the  affidavit ;  or  where  the  action  or  defense  is  founded 
upon  a  written  instrument  for  the  payment  of  money  only,  which 
is  in  the  possession  of  the  agent  or  the  attorney;  or  where  all  the 
material  allegations  of  the  pleading  are  within  the  personal  knowl- 
edge of  the  agent  or  the  attorney :  m  either  case  the  verification  may 
be  made  by  the  agent  of  or  the  attorney  for  the  party. 

The  affidavit  of  verification  must  be  to  the  effect,  that  the  plead- 
ing i?  true  to  the  knowledge  of  the  deponent,  except  as  to  the 
matters  therein  stated  to  be  alleged  on  information  and  belief,  and 
that  as  to  those  matters  he  believes  it  to  be  true:  WLere  it  is  made 
bv  a  person,  other  than  the  partv,  he  must  set  forth,  in  the  affidavit, 
the  grounds  of  his  belief,  as  to  all  matters  not  stated  upon  his 
knowledge :  and  the  reason  why  it  is  not  made  by  the  party.  Code 
Civ.  Pro.,  §§  525,  526. 


PLEADING  AND  PRACTICE  UNDER  NEW  YORK  CODE.      479 
STATE  OF  XEW  YORK, 


COUNTY  OF 


»ss.. 


John  Jones,  being  duly  sworn,  says :  I  am  the  attorney  for  (the 
plaintiff)  above  named.  I  have  read  and  know  the  contents  of  the 
foregoing  (complaint)  and  the  same  is  true  of  my  own  knowledge, 
except  as  to  the  matters  therein  stated  to  be  alleged  on  information 
and  belief,  and  as  to  those  matters,  I  believe  it  to  be  true.  The 
source  of  my  information  and  the  grounds  of  my  belief  are  state- 
ments made  to  me  by  the  plaintiff,  and  an  inspection  by  me  of 
correspondence  between  the  parties  to  this  action  relating  to  the 
transaction  set  forth  in  the  complaint. 

The  reason,  this  (complaint)  is  verified  by  me  's  that  (the  plain- 
tiff) is  not  within  the  county  where  I  reside  and  have  iny  office. 

JOHN  JONES. 
Sworn  to  before  me,  this  loth 
day  of  December,  1908. 

JAMES  SMITH, 

Notary  Public,  etc. 


15.  When  must  a  pleading  be  verified? 

It  is  usually  not  necessary,  but  should  be  done  if  possible,  fbr  it 
necessitates  the  verification  of  each  subsequent  pleading,  and  more- 
over allows  the  plaintiff,  in  certain  cases,  if  the  defendant  has  not 
appeared,  to  take  judgment  by  default  without  application  to  the 
court. 

But  the  verification  may  be  omitted,  even  when  the  complaint 
was  verified,  in  a  case  where  it  is  not  otherwise  specially  prescribed 
by  law,  where  the  party  pleading  would  be  privileged  from  testify- 
ing as  a  witness  concerning  an-  allegation  or  denial  contained  in  the 
pleading.  A  pleading  cannot  be  used  in  a  criminal  prosecution 
against  the  party  as  proof  of  a  fact  admitted  or  alleged  therein. 

A  demurrer  also  need  not  be  verified,  nor  the  general  answer  of 
an  infant  by  Ills  guardian  ad  Utem.  Code  Civ.  Pro.,  §  523.  And 
in  an  action  for  divorce  the  answer  of  the  defendant  may  be  made 
without  verifying  it.  notwithstanding  the  verification  of  the  com- 
plaint. Code  Civ.  Pro..  §  175:.  But  a  defense,  which  does  not  in- 
volve the  merits  of  the  action,  shall  not  be  pleaded  unless  it  is 
verified.  Code  Civ.  Pro..  §  513.  After  the  recovery  of  a  judg- 
ment against  joint  debtors  as  prescribed  in  section  1932  of  the 
Code,  an  action  mav  be  maintained  against  one  or  more  of  the 
joint  debtors  who  were  not  parties  to  the  original  action  to  procure 
a  judgment  charsrinEr  their  property  with  any  sum  remaining  un- 
paid on  the  original'  judgment.  In  Such  an  action  the  complaint 
must  be  verified.  Code  Civ.  Pro.,  §§  1937,  1938. 


480  QUESTIONS  AND  ANSWERS. 

d.      Notice  of  Appearance. 

16.  How  must  a  defendant  appear  in  an  action,  and  what  is  tlie 
effect  of  a  voluntary  appearance  on  his  part? 

When  the  defendant  is  served  with  a  summons  only  he  must 
serve  a  notice  of  appearance  upon  the  plaintiff's  attorney  within 
twenty  days  after  service  of  the  summons  is  complete,  exclusive  of 
the  day  of  service.  A  notice  of  appearance  entitles  him  only  to 
notice  of  the  subsequent  proceedings,  unless  within  the  same  time 
lie  demands  the  service  of  a  copy  of  the  complaint.  This  demand 
may  be  incorporated  into  the  notice  of  appearance.  When  he  is 
served  with  a  copy  of  the  complaint  he  must  serve  a  copy  of  a 
demurrer  or  of  an  answer  upon  the  plaintiff's  attorney,  within  the 
same  time.  Code  Civ.  Pro.,  §§  421,  422,  479. 

17.  Draw  a  notice  of  appearance  and  demand. 
SUPREME  COURT  — NEW  YORK  COUNTY. 


JOHN  DOE,  Plaintiff 

vs.- 
RICHARD  ROE,  Defendant. 

Notice  of  Appearance  and  Demand. 

SIR. —  Please  to  take  notice,  that  the  defendant,  Richard  Roe, 
.appears  in  this  action,  and  that  I  am  retained  as  attorney  for  him 
therein,  and  demand  that  a  copy  of  the  complaint  and  all  papers  in 
this  action  be  served  on  me,  at  my  office,  No.  45  William  street, 
Borough  of  Manhattan,  New  York  city. 
September  12,  1898. 

Yours,  etc., 

HEXRY  K.  JONES, 

Attorney  for  Defendant. 

Office  and  post-office  address,  45  William  street,  Borough  of  Man- 
hattan, New  York  city. 
To  JAMES  E.  SMITH,  Esq., 

Plaintiff's  Attorney. 

e.     Demurrer. 

18.  Upon  what  grounds  and  when  may  a  defendant  demur  to 
a  complaint? 

The  defendant  may  demur  to  the  complaint  where  one  or  more 
of  the  following  objections  thereto  appear  upon  the  face  thereof : 

1.  That  the  court  has  not  jurisdiction  of  the  person  of  the  de- 
fendant. 

2.  That  the  court  has  not  jurisdiction  of  the  subject  of  the 
action. 


PLEADING  AND  PRACTICE  UNDER  XEW  YORK  CODE.      481 

3.  That  the  plaintiff  has  not  legal  capacity  to  sue. 

4.  That  there  is  another  action  pending  between  the  same  parties 
for  the  same  cause. 

5.  That  there  is  a  misjoinder  of  parties  plaintiff. 

6.  That  there  is  a  defect  of  parties  plaintiff  or  defendant. 

7.  That  causes  of  action  have  been  improperly  united. 

8.  That  the  complaint  does  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action.     Code  Civ.  Pro.,  §  488 ;  Bishop,  Code  Prac- 
tice, §  210.     Any  of  the  above  objections  which  do  not  appear  on 
the  face  of  the  complaint  may  be  raised  by  answer.     Code  Civ.  Pro., 
§  498. 

19.  What  must  a  demurrer  specify? 

The  demurrer  must  distinctly  specify  the  objections  to  the  com- 
plaint; otherwise  it  may  be  disregarded.  An  objection,  taken  un- 
der subdivision  first,  second,  fourth,  or  eighth  above,  may  be  stated 
in  the  language  of  the  subdivision ;  an  objection,  taken  under  either 
of  the  other  subdivisions,  must  point  out  specifically  the  particular 
defect  relied  upon.  Code  Civ.  Pro.,  §  490. 

An  objection  under  subdivision  2  or  8  is  not  waived  by  a  failure 
to  demur  and  may  be  taken  advantage  of  in  the  first  instance  at  the 
trial  by  a  motion  to  dismiss.  Objections  made  under  the  other 
subdivisions  are  waived  unless  taken  by  demurrer  or  answer  as  may 
be  appropriate.  Code  Civ.  Pro.,  §  499. 

20.  Upon  what  grounds  may  the  plaintiff  demur  to  a  counter- 
claim upon  which  the  defendant  demands  an  affirmative  judgment? 

Upon  the  following  grounds : 

1.  That  the  court  has  not  jurisdiction  of  the  subject  thereof. 

2.  That  the  defendant  has  not  legal  capacity  to  recover  on  the 
same. 

3.  That  there  is  another  action  pending  between  the  same  parties 
for  the  same  cause. 

4.  That  the  counterclaim  is  not  of  the  character  specified  in 
section  501,  Code  of  Civil  Procedure. 

5.  That  the  counterclaim  does  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action.     Code  Civ.  Pro.,  §  495. 

21.  Upon  what  grounds  may  the  defendant  demur  to  a  reply? 
The  sole  ground  of  demurrer  to  a  reply,  or  to  a  separate  traverse 

to,  or  avoidance  of,  a  defense  or  counterclaim  contained  in  the 
reply,  is  that  it  is  insufficient  in  law  upon  its  face.  Code  Civ. 
Pro.',  §  493. 

f.     Answer. 

22.  What  must  an  answer  contain? 

1.  A  general  or  specific  denial  of  each  material  allegation  of  the 
complaint  controverted  by  the  defendant,  or  of  any  knowledge  or 
information  thereof  sufficient  to  form  a  belief. 

31 


482  QUESTIONS  AND  ANSWERS. 

2.  A  statement  of  any  new  matter  constituting  a  defense  or 
counterclaim,  in  ordinary  and  concise  language,  without  repetition. 
Code  Civ.  Pro.,  §  500. 

23.  What  facts  may  be  proved  under  a  denial? 

All  those  facts  which  show  the  plaintiff's  averments  to  be  untrue. 
Facts  which  are  consistent  with  their  truth,  but  show  no  cause  of 
action,  are  new  matter  to  be  pleaded.  Dubois  v.  Hermance,  56  X. 
Y.  673. 

24.  A.  sued  B.  on  a  contract  under  seal.     The  answer  is  a  gen- 
eral denial.     Can  B.  introduce  evidence  of  failure  of  consideration? 

No.  Consideration  is  presumed,  and  proof  of  failure  of  consid- 
eration must  be  set  up  affirmatively  as  a  defense.  Dubois  v.  Her- 
mance,  56  N.  Y.  673;  Forgotston  v.  Cragin,  62  N".  Y.  App.  Div. 
243. 

But  should  the  complaint  set  up  a  contract  made  upon  a  stated 
consideration,  the  plaintiff  must  prove  the  consideration,  and  under 
a  general  denial  the  defendant  may  disprove  the  plaintiff's  allega- 
tion by  showing  the  want  of  consideration. 

25.  What  must  a  partial  defense  state  ? 

A  partial  defense  must  be  expressly  stated  to  be  a  partial  defense 
to  the  entire  complaint,  or  to  one  or  more  separate  causes  of  ac- 
tion therein  set  forth.  Code  Civ.  Pro.,  §  508. 

26.  May  a  defendant  set  up  more  than  one  defense  or  counter- 
claim in  his  answer? 

Yes.  A  defendant  may  set  forth,  in  his  answer,  as  many  de- 
fenses or  counterclaims,  or  both,  as  he  has,  whether  they  are  such 
as  were  formerly  denominated  legal  or  equitable.  Each  defense  or 
counterclaim  must  be  separately  stated,  and  numbered.  Unless  it 
is  interposed  as  an  answer  to  the  entire  complaint,  it  must  dis- 
tinctly refer  to  the  cause  of  action  which  it  is  intended  to  answer. 
Code'Civ.  Pro.,  §  507;  Bishop,  Code  Practice,  §  187. 

The  same  matter  laay  constitute  both  a  defense  and  a  counter- 
claim, and  may  be  pleaded  in  both  ways.  Matter  occurring  after 
the  service  of  the  complaint  and  before  the  answer  is  put  in,  may 
also  be  pleaded.  Lansing  v.  Ensign,  62  How.  Pr.  363 ;  Heckeman 
v.  Young,  29  St.  Rep.  55. 

27.  A.  sued  B.  on  a  judgment  recovered  in  this  State.     B.  sets 
up  that  the  judgment  was  fraudulent,  and  a  foreign  tribunal  hav- 
ing jurisdiction  of  the  person  had  so  adjudged.     Is  the  defense  a 
proper  one  ? 

Yes.  Equitable  defenses  include  all  matters  which  would  au- 
thorize an  application  to  the  Court  of  Chancery  for  relief  against 
a  legal  liability,  but  which,  at  law,  could  not  have  been  pleaded  in 
bar.  Dobson  V.  Pearce,  12  N.  Y.  156. 


PLEADING  AND  PRACTICE  UNDER  XEW  YORK  CODE.      483 

28.  IVhat  is  the  result  where  an  answer  admits  part  of  the  plain- 
Jiff's  claim  f 

Where  the  answer  of  the  defendant,  expressly  or  by  not  denying, 
admits  a  part  of  the  plaintiff's  claim  to  be  just,  the  court,  upon  the 
plaintiff's  motion,  may,  in  its  discretion,  order  that  the  action  be 
severed;  that  a  judgment.be  entered  for  the  plaintiff  for  the  part  so 
admitted;  and  if  the  plaintiff  so  elects,  that  the  action  be  con- 
tinued, with  like  effect,  as  to  the  subsequent  proceedings,  as  if  it 
had  been  originally  brought  for  the  remainder  of  the  claim.  Code 
Civ.  Pro.,  §  511. 

29.  What  is  a  negative  pregnant  ? 

A  negative  pregnant  is  an  evasive  answer  to  an  allegation,  by 
answering  it  literally  without  answering  the  substance  of  it.  If, 
for  example,  a  complaint  alleged  that  plaintiff  loaned  defendant 
$100,  and  the  answer  denied  that  the  plaintiff  loaned  the  defendant 
$100,  such  an  answer,  though  perhaps  literally  true,  would  not  in 
substance  be  a  denial  at  all;  for  it  might  still  be  true  that  the 
plaintiff  had  loaned  the  defendant  $99.  He  should  deny  that 
plaintiff  loaned  him  $100  or  any  other  sum.  Salinger  v.  Lusk,  7 
How.  Pr.  430;  Davison  v.  Powell,  16  id.  467. 

30.  What  third  pleading  is  open  to  a  defendant  besides  demur- 
ring or  answering? 

There  is  no  third  pleading  possible.  A  defendant  who  pleads  at 
all  must  either  demur  or  answer.  Code  Civ.  Pro.,  §  487.  He  may 
also,  before  demurring  or  answering,  make  motions  for  various 
kinds 'of  relief, —  as,  for  example,  to  set  aside  service  of  the  sum- 
mons (if  he  has  not  appeared  generally),  to  compel  the  plaintiff 
to  separately  state  and  number  his  causes  of  action,  etc. 

g.      Counterclaim. 

31.  Define  a  counterclaim,  and  state  when  it  may  le  set  up? 

A  counterclaim  must  tend  in  some  way  to  diminish  or  defeat 
the  plaintiff's  recovery,  and  it  must  be  one  of  the  following  causes 
of  action  against  the  ^plaintiff,  or  in  a  proper  case  against  the  per- 
son whom  he  represents,  and  in  favor  of  the  defendant,  or  of  one 
or  more  defendants,  between  whom  and  the  plaintiff  a  separate 
judgment  may  be  had  in  the  action. 

1.  A  cause  of  action  arising  cut  of  the  contract  or  transaction 
set  forth  in  the  complaint,  as  the  foundation  of  the  plaintiff's  claim 
or  connected  with  the  subject  of  vhe  action : 

2.  In  an  action  upon  contract,  any  other  cause  of  action  on  con- 
tract existing  at  the  commencement  of  the  action. 

The  latter  counterclaims,  however,  are  subject  to  the  following 

rules : 

1.  If  the  action  is  founded  upon  a  contract  which  has  been  as- 
signed by  the  party  thereto,  other  than  a  negotiable  promissory 


484  QUESTIONS  AND  ANSWERS. 

note  or  bill  of  exchange,  a  demand  existing  against  the  party 
thereto  or  an  assignee  of  the  contract  at  the  time  of  the  assignment 
thereof,  and  belonging  to  the  defendant  in  good  faith  before  notice 
of  the  assignment,  must  be  allowed  as  a  counterclaim  to  the  amount 
of  the  plaintiff's  demand,  if  it  might  have  been  so  allowed  against 
the  party  or  the  assignee  while  the  contract  belonged  to  him. 

2.  If  the  action  is  upon  a  negotiable  promissory  note  or  bill  of 
exchange  which  has  been  assigned  to  the  plaintiff  after  it  became 
due,  a  demand  existing  against  a  person  who  assigned  or  transferred 
it  after  it  became  due  must  be  allowed  as  a  counterclaim,  to  the 
amount  of  the  plaintiff's  demand,  if  it  might  have  been  so  allowed 
against  the  assignor  while  the  note  or  bill  belonged  to  him. 

3.  If  the  plaintiff  is  a  trustee  for  another,  or  if  the  action  is  in 
the  name  of  a  plaintiff  who  has  no  actual  interest  in  the  contract 
upon  which  it  is  founded,  a  demand  against  the  plaintiff  shall  not 
be  allowed  as  a  counterclaim;  but  so  much  of  a  demand  existing 
against  the  person  whom  he  represents,  or  for  whose  benefit  the  ac- 
tion is  brought,  as  will  satisfy  the  plaintiff's  demand  must  be  al- 
lowed as  a  counterclaim,  if  it  might  have  been  so  allowed  in  an 
action  brought  by  the  person  beneficially  interested.     Code  Civ. 
Pro.,  §§  501,  502;  Bishop,  Code  Practice,  §§  195-203. 

h.     Reply. 
32.  When  is  a  reply  necessary? 

When  the  answer  contains  a  counterclaim  the  plaintiff,  if  he 
does  not  demur,  may  reply  to  the  counterclaim.  The  reply  must 
contain  a  general  or  specific  denial  of  each  material  allegation  of 
the  counterclaim  controverted  by  the  plaintiff,  or  of  any  knowledge 
or  information  thereof  sufficient  to  form  a  belief,  and  it  may  set 
forth  in  ordinary  and  concise  language,  without  repetition,  new 
matter,  not  inconsistent  with  the  complaint,  constituting  a  defense 
to  the  counterclaim.  Code  Civ.  Pro.,  §  514. 

33.  In  what  cases  and  on  whose  application  may  the  court  re- 
quire a  reply  to  be  made? 

TVhere  an  answer  contains  new  matter,  constituting  a  defense  by 
way  of  avoidance,  the  court  may  in  its  discretion,  on  the  defend- 
ant's application,  direct  the  plaintiff  to  reply  to  the  new  matter. 
In  that  case  the  reply,  and  the  proceedings,  upon  failure  to  reply, 
are  subject  to  the  same  rules  as  in  the  case  of  a  counterclaim.  Code 
Civ.  Pro.,  §  516. 

34.  IVhat  matters  may  the  plaintiff  join  in  his  reply? 

A  plaintiff  may  join  in  the  same  reply  a  denial  of  the  counter- 
claim and  new  matter,  not  inconsistent  with  the  complaint,  in 
avoidance  of  it.  1  Nichols  X.  Y.  Prac.  990.  But  he  cannot  set 
up  a  new  cause  of  action  against  defendant  by  wa}r  of  reply.  Cohn 
T.  Husson,  66  How.  Pr.  150. 


PLEADING  AND  PRACTICE  UNDER  XEW  YORK  CODE.      485 

i.      General  Provisions  as  to  Pleadings. 
1.    FRIVOLOUS    PLEADING. 

35.  Define  a  frivolous  pleading  and  a  sham  defense,  and  state  how 
each  is  dealt  with. 

A  frivolous  pleading  is  one  obviously,  and  upon  its  face  insuf- 
ficient as  matter  of  law,  and  so  clearly  bad  that  the  defect  appears 
upon  a  mere  inspection,  and  indicates  that  it  was  interposed  in  bad 
faith.  A  sham  defense  is  one  so  clearly  false  in  fact  that  it  does 
not  in  reality  involve  any  matter  of  substantial  litigation.  1  Eum- 
sey's  Practice  (2d  ed.),  pp.  379,  382. 

If  a  demurrer,  answer  or  reply  is  frivolous,  the  party  prejudiced 
thereby,  upon  a  previous  notice  to  the  adverse  party,  of  not  less 
than  five  days,  may  apply  to  the  court  or  to  a  judge  of  the  court 
for  judgment  thereupon,  and  judgment  may  be  given  accordingly. 
Code  Civ.  Pro.,  §  537. 

Upon  such  a  motion  the  pleading  is  not  stricken  out,  but  what- 
ever action  may  be  had  in  respect  to  it,  whether  condemned  as 
frivolous  or  not,  it  remains  a  part  of  the  record  and  makes  a  part 
of  the  judgment-roll.  Briggs  v.  Bergen,  23  X .  Y.  162 ;  Strong  v. 
Sproul,  53  X.  Y.  497. 

A  sham  answer  or  defense  may  be  stricken  out  by  the  court  on 
motion,  upon  such  terms  as  the  court  deems  just.  Code  Civ.  Pro., 
§  538. 

"A  pleading  to  be  stricken  out  must  be  false  in  the  sense  of  being 
a  mere  pretense  set  up  in  bad  faith  and  without  color  of  fact." 
Farnsworth  v.  Halstead,  18  Civ.  Pro.  Rep.  227,  228. 

The  practice  on  a  motion  to  strike  out  an  answer  as  sham  is  to 
prepare  affidavits  and  move  on  notice  to  defendant's  attorney.  Op- 
posing affidavits  showing  the  answer  is  true  in  fact,  or  might  be 
true,  and  that  it  was  interposed  in  good  faith  and  not  for  delay, 
may  be  presented  by  the  defendant.  Bishop,  Code  Practice,  §  224. 

36.  Can  a  verified  pleading,  containing  a  denial  of  a  material 
allegation,  be  stricken  out? 

Xo.  A  verified  pleading,  containing  a  denial  of  any  material 
allegation  of  the  complaint,  though  not  a  general  denial,  cannot  be 
stricken  out,  because  it  raises  an  issue  and  gives  the  defendant  the 
ri^-ht  to  a  trial  by  jury :  and  this  right  is  secured  by  the  Constitu- 
tion, §  2,  art.  I.  '  Thompson  v.  Erie  Ry.  Co.,  45  X.  Y.  468 ;  Way- 
land  v.  Tysen,  id.  281. 

2.    AMENDMENTS. 

37.  When  may  pleadings  be  amended  of  course  f 

Within  twenty  days  after  a  pleading,  or  the  answer  or  demurrer 
or  reply  thereto!  is  served,  or  at  any  time  before  the  period  for  an- 
swering it  expires,  the  pleading  may  be  once  amended  by  the  party, 
of  course,  without  costs,  and  without  prejudice  to  the  proceedings 


486  QUESTIONS  AND  ANSWERS. 

already  had.  But  if  it  is  made  to  appear  to  the  court,  that  the 
pleading  was  amended  for  the  purpose  of  delay,  and  that  the  ad- 
verse party  will  thereby  lose  the  benefit  of  a  term,,  for  which  the 
cause  is  or  may  be  noticed,  the  amended  pleading  may  be  stricken 
out,  or  the  pleading  may  be  restored  to  its  original  form,  and  such 
terms  imposed  as  the  court  deems  just.  Code  Civ.  Pro.,  §  542. 

In  amending,  a  party  may  substitute  an  entirely  different  cause 
of  action  from  that  originally  pleaded.  Brown  v.  Leigh,  49  N.  Y. 
78.  But  the  amendment  must  be  of  the  pleading  served.  He  can- 
not, without  application  to  the  court  for  leave,  withdraw  a  de- 
murrer and  substitute  an  answer  in  its  place.  Cashman  v.  Rey- 
nolds,  123  N".  Y.  138.  Nor  can  he,  without  motion,  withdraw  an 
answer  and  serve  a  demurrer.  Finch  v.  Pindon,  19  Abb.  Prac.  96. 

The  fact  that  either  party  has  noticed  the  case  for  trial  makes 
no  difference  in  the  right  to  amend.  Ostrander  v.  Conkey,  20  Hun, 
421;  Clifton  v.  Brown,  27  Hun,  231. 

38.  Must  a  copy  of  the  amended  pleading  be  served? 

Yes.  Where  a  pleading  is  amended,  a  copy  thereof  must  be 
served  upon  the  attorney  for  the  adverse  party.  A  failure  to  de- 
mur to,  or  answer,  the  amended  pleading,  within  twenty  days  there- 
after, has  the  same  effect  as  a  like  failure  to  demur  to,  or  answer 
the  original  pleading.  Code  Civ.  Pro.,  §  543. 

39.  In  what  other  way  may  a  pleading  be  amended? 

1.  By  application  to  the  court  before  trial  for  leave  to  amend. 
Such  application  should  be  made  upon  notice  and  affidavits,  and 

may  be  granted  upon  such  terms  as  the  court  sees  fit  to  impose. 
Code  Civ.  Pro.,  §  723. 

2.  By  application  to  the  court  during  the  trial  because  of  a  vari- 
ance between  the  proof  and  the  pleading. 

Where  the  variance  is  not  material  the  court  may  direct  the  fact 
to  be  found  according  to  the  evidence,  or  may  order  an  immediate 
amendment,  without  costs.  Code  Civ.  Pro.,  §  540. 

But  an  amendment  cannot  be  allowed  upon  any  application  which 
will  change  the  issue  or  bring  in  a  new  cause  of  action,  subject  to 
this  limitation,  that  the  court  mav  make  the  pleading  conform  to 
the  facts  proved,  and  may  permit  the  insertion  of  material  addi- 
tional allegations.  1  Nichols  N.  Y.  Prac.  1029 ;  Smith  v.  Rathbun, 
75  N.  Y.  122. 

3.  In  rare  cases  application  to  amend  may  be  made  after  judg- 
ment and  even  in  the  appellate  court.     Code  Civ.  Pro.,  §  723;  1 
Rumsey's  Practice  (2d  ed.),  p.  371. 

40.  ^Yhat  is  a  material  variance  between  the  pleadings  and  the 
proof  ? 

It  is  a  variation  which  actually  misleads  the  adverse  party,  to  his 
prejudice,  in  maintaining  his  action  or  defense,  upon  the  merits, 


PLEADING  AXD  PRACTICE  UNDER  NEW  YORK  CODE.      487 

and  this  lie  must  prove  to  the  court.  Code  Civ.  Pro.,  §  539.  In 
other  instances  a  variance  is  not  fatal.  Thus,  in  an  action  for 
goods  sold  and  delivered,  the  plaintiff  would  be  allowed  to  amend 
and  show  a  delivery  to  a  third  person  by  order  of  the  defendant. 
Rogers  v.  Verona,  1  Bosw.  417.  So  also  in  an  action  on  a  contract 
for  services,  at  a  stated  rate,  the  plaintiff  could  show  the  value  of 
the  services.  Sussdorff  v.  Schmidt,  55  N".  Y.  319. 

41.  What  are  the  functions  of  supplemental  pleadings? 
Section  544  of  the  Code  of  Civil  Procedure  provides:  Upon  the 

application  of  either  party,  the  court  may,  and,  in  a  proper  case, 
must,  upon  such  terms  as  are  just,  permit  him  to  make  a  supple- 
mental complaint,  answer  or  reply,  alleging  material  facts  which 
occurred  after  his  former  pleading,  or  of  which  he  was  ignorant 
when  it  was  made ;  including  the  judgment  or  decree  of  a  competent 
«ourt,  rendered  after  the  commencement  of  the  action,  determining 
the  matters  in  controversy,  or  a  part  thereof. 

The  object  of  a  supplemental  pleading  is  to  set  up  facts  consist- 
ent with  and  in  aid  of  the  original  pleadings  which  have  occurred 
or  come  to  the  knowledge  of  the  party  since  the  action  was  begun 
or  the  original  pleading  served.  Facts  which  have  occurred  since 
the  commencement  of  the  action  cannot  be  proved  unless  so  set  up. 
Tiffany  v.  Bowerman,  2  Hun,  643;  Holyoke  v.  Adams,  59  N.  Y. 
233;  Hall  v.  Olney,  65  Barb.  27. 

II.  MOTIONS  ON  THE  PLEADINGS. 

42.  When  is  a  motion  to  dismiss  on  the  pleadings  made? 

A  motion  to  dismiss  on  the  pleadings  is  made  after  the  jury  ia 
sworn  and  before  the  case  is  stated  to  the  jury  by  the  opening  coun- 
sel. A  similar  motion  may  also  be  made,  after  the  case  has  been 
opened,  on  the  pleading  and  opening. 

43.  What  are  the  usual  grounds  for  such  motions? 

(1)  That  the  complaint  does  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action;  (2)  that  the  court  is  without  jurisdiction  of 
the  subject-matter;  (3)  that  the  answer  does  not  state  a  defense. 
Bishop,  Code  Prac.  §  424;  Eaton  v.  Wells,  82  N.  Y.  576. 

The  objections  specified  may  be  taken  by  demurrer,  but  they 
are  not  waived  if  not  so  taken ;  Code  Civ.  Pro.,  §  499 ;  and  may  be 
raised  upon  motion  at  any  stage  of  the  case  before  evidence  sup- 
plying the  defect  is  heard.  Abbott,  Trial  Brief,  Civil  Issues,  2d  ed., 
p.  77.  Scofield  v.  Whitelegge,  49  N.  Y.  259;  Sheridan  v.  Jackson, 
72  N.  Y.  170.  See  also  Ques.  19  (supra). 

III.  PARTIES. 

44.  Can  an  infant  be  a  parti/  plaintiff  or  defendant? 

An  infant  can  bring  suit  by  a  guardian  ad  litem  who  will  be  ap- 
pointed by  the  court,  upon  the  application  of  the  infant  if  he  is 


488  QUESTIONS  AND  ANSWERS. 

fourteen  }Tears  of  age  or  upwards ;  or,  if  he  is  under  that  age,  upon 
application  of  his  general  or  testamentary  guardian,  if  he  has  one, 
or  of  a  relative  or  friend.  Xotice  of  the  application  must  be  given 
to  the  guardian,  if  there  is  one,  or  to  the  person  with  whom  the 
infant  resides  in  cases  where  the  application  is  made  by  a  relative 
or  a  friend.  Code  Civ.  Pro.,  §§  469-470. 

An  infant  must  also  appear  by  guardian.     Code  Civ.  Pro.,  §  471. 

45.  May  a  married  woman  bring  an  action  without  joining  her 
husband  as  a  party  plaintiff? 

In  an  action  or  special  proceeding  a  married  woman  appears, 
prosecutes  or  defends  alone  or  joined  with  other  parties  as  if  she 
was  single. 

It  is  not  necessary  or  proper  to  join  her  husband  with  her  as  a 
party  in  any  action  or  special  proceeding  affecting  her  separate 
property,  or  on  account  of  the  wrongful  acts  of  the  wife  committed 
without  the  instigation  of  her  husband.  Code  Civ.  Pro.,  §  450. 

46.  How  must  an  executor  sue  and  be  sued? 

"An  action  or  special  proceeding,  hereafter  commenced  by  an  ex- 
ecutor or  administrator,  upon  a  cause  of  action,  belonging  to  him 
in  his  representative  capacity,  or  an  action  or  special  proceeding, 
hereafter  commenced  against  him,  except  where  it  is  brought  to 
charge  him  personally,  must  be  brought  by  or  against  him  in  his 
representative  capacity.  A  judgment,  in  an  action  hereafter  com- 
menced, recovered  against  an  executor  or  administrator,  without 
describing  him  in  his  representative  capacity,  cannot  be  enforced 
against  the  property  of  the  decedent,  except  by  the  special  direction 
of  the  court,  contained  therein."  Code  Civ.  Pro.,  §  1814. 

47.  Under  what  circumstances  may  a  party  sue  or  defend  as  a 
poor  person? 

A  poor  person  not  being  of  ability  to  sue,  who  alleges  that  he  has 
a  cause  of  action  against  another  person,  may  apply  by  petition  for 
leave  to  prosecute  as  a  poor  person,  and  to  have  an  attorney  and 
counsel  assigned  to  conduct  his  action.  The  petition  must  state : 

1.  The  nature  of  the  action  brought  or  intended  to  be  brought. 

2.  That  the  applicant  is  not  worth  one  hundred  dollars  besides 
the  wearing  apparel  and  furniture  necessary  for  himself  and  his 
family,  and  the  subject-matter  of  the  action. 

It  must  be  verified  by  the  applicant's  affidavit,  unless  the  appli- 
cant is  an  infant  under  the  age  of  fourteen  years,  and  in  that  case 
by  the  affidavit  of  his  guardian  appointed  in  said  action,  and  sup- 
ported by  a  certificate  of  a  counselor-at-law  to  the  effect  that  he 
has  examined  the  case  and  is  of  the  opinion  that  the  applicant  has 
a  good  cause  of  action. 

The  court  to  which  the  petition  is  presented  may.  by  order,  ad- 
mit him  to  prosecute  as  a  poor  person,  and  assign  to  him  an  at- 


PLEADING  AND  PRACTICE  UNDER  NEW  YORK  CODE.      489 

torney  and  counsel  to  prosecute  his  action,  who  must  act  therein 
without  compensation.     Code  Civ.  Pro.,  §§  458-460. 

So  also  a  defendant  in  an  action  involving  his  right  or  interest  in 
real  or  personal  property  may  petition  in  the  same  manner  and 
enjoy  the  same  privileges.  Code  Civ.  Pro.,  §  463. 

48.  What  is  the  necessary  proceeding  where  a  party,  who  ought 
to  join  as  a  party  plaintiff,  refuses  to  allow  his  name  to  be  used? 

All  of  the  parties  in  interest  may  be  joined  in  aa  action.  Those 
who  are  united  in  interest  must  be  joined  as  plaintiffs  or  defend- 
ants, except  as  otherwise  prescribed  in  the  Code.  But  where  a 
party  who  ought  to  be  joined  as  a  plaintiff  will  not  consent  thereto 
he  may  be  made  a  defendant,  the  reason  therefor  being  stated  in 
the  complaint.  Code  Civ.  Pro.,  §  448. 

49.  A.  has  a  claim  upon  a  contract  with  X.,  which  he  assigns 
to  B.     Who  should  sue  for  a  breach  of  the  contract? 

The  action  must  be  brought  in  the  name  of  the  assignee,  he  be- 
ing the  real  party  in  interest.  But  the  section  expressly  provides 
that  an  executor  or  administrator,  a  trustee  of  an  express  trust,  or 
a  person  expressly  authorized  by  statute  may  sue  without  joining 
with  him  the  person  for  whose  benefit  the  action  is  prosecuted ;  and 
a  person  with  whom,  or  in  whose  name,  a  contract  is  made  for 
the  benefit  of  another,  is  a  trustee  of  an  express  trust.  Code  Cov. 
Pro.,  §  449. 

50.  What  claims  may  be  assigned? 

Any  claim  or  demand  can  be  transferred,  except  in  one  of  the 
following  cases: 

1.  Where  it  is  to  recover  damages  for  a  personal  injury,  or  for  a 
breach  of  promise  to  marry. 

2.  Where  it  is  founded  upon  a  grant,  which  is  made  void  by  a 
statute  of  the  State ;  or  upon  a  claim  to  or  interest  in  real  property, 
a  grant  of  which,  by  the  transferrer,  would  be  void  by  such  a 
statute. 

3.  Where  a  transfer  thereof  is  expressly  forbidden  by  a  statute 
of  the  State,  or  of  the  United  States,  or  would  contravene  public 
policy.     Code  Civ.  Pro.,  §  1910. 

IV.  BILLS  OF  PARTICULARS. 

51.  What  is  a  bill  of  particulars? 

A  bill  of  particulars  is  a  statement,  verified  or  not,  depending  on 
the  form  of  the  order  on  which  it  is  granted,  apprising  either  the 
plaintiff  or  defendant  of  the  particulars  of  the  charge  which  he  is 
expected  to  meet.  It  cannot  be  used  as  a  means  of  discovery  of  the 
evidence  to  be  relied  upon  by  the  other  side.  Ball  v.  Pub.  Co.,  38 
Hun,  11.  In  case  of  failure  to  comply  with  an  order  directing  a 


490  QUESTIONS  AND  ANSWERS. 

bill  of  particulars,  the  court  shall  preclude  the  party  in  default 
from  giving  evidence  of  the  part  or  parts  of  his  affirmative  allega- 
tion of  which  particulars  have  not  been  delivered.  Code  Civ.  Pro., 
§531. 

52.  When  may  a  bill  of  particulars  be  granted? 

"  In  almost  every  kind  of  case  in  which  the  defendant  can  satisfy 
the  court  that  it  is  necessary  to  a  fair  trial,  that  he  should  be  ap- 
prised beforehand  of  the  particulars  of  the  charge  which  he  is  ex- 
pected to  meet,  the  court  has  authority  to  compel  the  adverse  party 
to  specify  those  particulars  so  far  as  in  his  power."  Tilton  v. 
Beecher,  59  N.  Y.  176,  187. 

53.  How  is  a  bill  of  particulars  procured? 

It  is  customary  to  ask  the  attorney  for  the  other  side  for  a  bill 
of  particulars ;  if  he  declines,  the  proceeding  is  by  motion  at  Special 
Term,  upon  notice.  The  bill  of  particulars  may  be  verified  or  not, 
depending  upon  whether  there  is  a  provision  in  the  order  to  that 
effect. 

V.  SUBP(ENA. 

54.  How  is  a  subpoena  served?     What  are  the  rights  of  a  ivitness 
attending  upon  subpoena? 

A  subpoena  is  served  by  showing  the  original  and  delivering  and 
leaving  with  the  witness  personally  a  copy.  A  witness  is  entitled 
to  fifty  cents  for  each  day's  attendance,  and  if  he  lives  more  than 
three  miles  from  place  of  trial,  to  eight  cents  a  mile  for  each  mile, 
going  to  the  place  of  trial.  Code  Civ.  Pro.,  §§  852,  3318. 

55.  What  is  a  subpoena  duces  tecum? 

"A  subpoena  duces  tecum  is  the  proper  form  of  subpoena  to  com- 
pel a  witness  to  bring  with  him  and  produce  on  the  trial  a  book  or 
paper  in  his  possession.  It  differs  from  the  ordinary  subpoena 
only  in  that  it  contains  a  direction  to  the  witness  to  bring  with 
him  the  book  or  document,  which  must  be  intelligibly  described." 
It  must  be  served,  however,  five  days  before  attendance  is  required. 
Code  Civ.  Pro.,  §  867;  Bishop,  Code  Practice,  §  394. 

VI.  TENDER. 

56.  What  are  the  Code  provisions  as  to  a  tender? 

Where  the  action  is  for  a  sum  certain  or  to  recover  for  involun- 
tary injury  to  person  or  property,  the  defendant  may  tender  the 
plaintiff,  before  trial,  such  a  sum  of  money  as  he  considers  suffi- 
cient, together  with  costs.  If  the  money  is  not  accepted,  it  must  be 
paid  into  court,  and  notice  in  writing  of  such  payment  served  upon 
the  plaintiff  before  the  trial,  and  within  ten  days  after  the  ten- 
der. If,  upon  trial,  the  amount  so  paid  into  court  proves  sufficient 


PLEADING  AND  PRACTICE  UNDKII  XEW  YORK  CODE.      491 

the  plaintiff  cannot  recover  costs  or  interest  from  the  time  of  ten- 
der, but  must  pay  the  defendant's  costs  from  that  time.  Code  Civ. 
Pro.,  §§  731-733. 

While  tender  must  be  unqualified  and  unconditional,  it  may  be 
restricted  by  such  conditions  as  by  the  terms  of  the  contract  are 
conditions  precedent  or  concurrent  to  the  payment  of  the  debt 
Halpin  v.  Ins.  Co.,  118  N.  Y.  165. 

VII.  OFFER  OF  JUDGMENT. 
57.  How  is  an  offer  of  judgment  made? 

An  offer  of  judgment  is  made  in  writing,  by  service  upon  the 
attorney  for  the  plaintiff  or  defendant,  before  trial. 

58.  What  must  an  offer  of  judgment  contain  ? 

It  must  contain  an  offer  that  judgment  be  taken  for  a  certain 
sum  of  money  or  for  other  relief  therein  specified;  certain  relief 
in  equity  or  in  a  foreclosure  suit,  together  with  costs  to  date,  and 
it  must  be  definite  in  its  terms.  It  must  be  subscribed  by  the  party 
—  in  which  case  it  is  to  be  acknowledged;  or  by  the  attorney  — 
in  which  case  he  must  annex  his  affidavit  to  the  effect  that  he  is 
authorized  to  make  it  on  behalf  of  his  client. 

If  this  offer  is  accepted  a  written  notice  of  acceptance  is  served 
on  the  attorney  for  the  offering  party  within  ten  days  and  the  clerk 
must  then  enter  judgment,  without  notice  to  the  other  side,  on  the 
filing  of  the  summons,  complaint  and  offer  with  proof  of  acceptance. 

59.  What  is  the  effect  of  failure  to  accept  an  offer  of  judgment, 
within  ten  days? 

If  notice  of  acceptance  is  not  given,  the  offer  cannot  be  given 
in  evidence  upon  the  trial ;  and  if  the  party  to  whom  the  offer  was 
made  fails  to  recover  a  more  favorable  judgment  he  cannot  recover 
costs  from  the  time  of  the  offer,  but  must  pay  costs  from  that  time. 
€ode  Civ.  Pro.,  §§  738-740. 

•VIII.    TIME. 

60.  How  must  the  time  required  by  the  Code  for  doing  any  act 
in  an  action  or  special  proceeding  brought  in  a  court  of  record  be 
computed? 

Such  time  must  be  computed  by  excluding  the  first  day  and  in- 
cluding the  last  day. 

If  the  last  day  is  Sunday  or  a  public  holiday  other  than  a  half 
holiday  it  must  be  excluded. 

Where  the  act  is  required  to  be  done  within  two  days,  and  an 
intervening  day  is  Sunday,  or  a  public  holiday  other  than  a  half 
holiday,  it^must  be  excluded.  Stat.  Const.  Law,  §  27. 


492  QUESTIONS  AND  ANSWERS. 

61.  Can  the  time  fixed  by  the  Code  for  doing  an  act  be  extended 
~by  the  court? 

The  time  for  serving  a  pleading  or  taking  any  other  proceeding 
in  an  action  after  its  commencement  can,  before  the  expiration 
of  such  time,  and,  except  as  otherwise  prescribed  by  law,  after  its 
expiration  be  extended  beyond  the  limit  allowed  by  the  Code  in  the 
court's  discretion,  except  that  a  court,  or  a  judge,  is  not  authorized 
to  extend  the  time,  fixed  by  law,  within  which  to  commence  an 
action;  or  to  take  an  appeal;  or  to  apply  to  continue  an  action, 
where  a  party  thereto  has  died,  or  has  incurred  a  disability;  or 
the  time  fixed  by  the  court,  within  which  a  supplemental  complaint 
must  be  made,  in  order  to  continue  an  action;  or  an  action  is  to 
abate,  unless  it  is  continued  by  the  proper  parties.  A  court,  or  a 
judge,  cannot  allow  either  of  those  acts  to  be  done,  after  the  ex- 
piration of  the  time  fixed  by  law,  or  by  the  order,  as  the  case  may 
be,  for  doing  it ;  except  that  when  a  party  entitled  to  appeal  from  a 
judgment  or  order,  or  to  move  to  set  aside  a  final  judgment  for 
error  in  fact,  dies  before  the  expiration  of  the  time  within  which 
the  appeal  may  be  taken,  or  the  motion  made,  the  court  may  allow 
the  appeal  to  be  taken,  or  the  motion  to  be  made,  by  the  heir, 
devisee,  or  personal  representative  of  the  decedent,  at  any  time 
within  four  months  after  his  death.  Code  Civ.  Pro.,  §§  781-785. 

62.  What  notice  of  motion  is  required  by  the  Code  ? 

If  notice  of  a  motion,  or  of  any  other  proceeding  in  an  action, 
before  a  court  or  a  judge,  is  necessary,  it  must,  if  personally  served, 
be  served  at  least  eight  days  before  the  time  appointed  for  the 
hearing,  unless  the  attorneys  for  the  respective  parties  reside  or 
have  their  offices  in  the  same  city  or  village,  in  which  case  the  notice 
may  be  five  days;  or  unless  the  court,  or  a  judge  thereof,  or  a 
county  judge  of  the  county  where  the  action  is  triable  or  in  which 
the  attorney  for  the  applicant  resides,  upon  an  affidavit  showing 
grounds  therefor,  makes  an  order  to  show  cause,  why  the  applica- 
tion should  not  be  granted;  and,  in  the  order,  directs  that  service 
thereof,  less  than  eight  days  before  it  is  returnable,  be  sufficient. 
A  copy  of  the  affidavit  on  which  such  an  order  to  show  cause  is 
granted  must  be  served  with  the  order. ,  Code  Civ.  Pro.,  §  780. 
Genl.  Rules  Prac.  37. 

63.  Within   what   time   must   the   following   notices   be   given: 
(1)  Notice  of  argument;  (2)  Notice  of  taxation  of  costs;  (3)  No- 
tice of  trial? 

1  Eight  days  is  the  regular  notice  of  motion  at  Special  or  Trial 
Term,  unless  the  attorneys  for  the  respective  parties  reside  or  have 
their  offices  in  the  same  city  or  village,  in  which  case  five  day?  is 
sufficient,  or  unless  an  order  to  show  cause  be  granted ;  enumerated 
case?  in  the  Appellate  Division,  First  Department,  fifteen  rlavg 
before  the  beginning  of  the  term  (Rule  5  of  App.  Div.  First 


PLEADING  AND  PRACTICE  UNDER  NEW  YORK  CODE.      493 

Dept.)  ;  appeals  from  orders,  Appellate  Division,   First  Depart- 
ment, eight  days  (Eule  4,  id.)  Genl.  Rules  Prac.  37,  40. 

Notice  of  motion  in  the  City  Court  is  in  general  four  days.  For 
special  provisions,  see  Code  Civ.  Pro.,  §  3161. 

2.  Two  days'  notice  of  taxation  of  costs  must  be  given,  if  the 
attorneys  reside  or  have  offices  in  the  city  or  town  where  costs  are 
taxed;  otherwise  five  days'  notice  must  be  given.    But  in  the  City 
Court  of  Xew  York,  one  day's  notice  is  sufficient,  if  all  attorneys 
reside  or  have  their  offices  in  Xew  York  city,  otherwise  two  days' 
notice  must  be  given.    Code  Civ.  Pro.,  §§  3263,  3161. 

3.  Fourteen  days'  notice  of  trial  before  the  beginning  of  the 
term  must  be  given,  unless  it  is  served  by  mail,  when  sixteen  days' 
notice  before  the  day  of  trial  is  required.     Code  Civ.  Pro.,  §§  798, 
977.    But  in  City  Court  of  Xew  York,  five  davs  onlv  is  required. 
Code  Civ.  Pro.,  §  3161. 

64.  What  are  the  general  provisions  of  the  Code  as  to  the  time 
in  which  papers  are  to  be  served,  or  notice  given,  when  service  is 
made  through  the  mail? 

Where  it  is  prescribed  in  this  act,  or  in  the  general  rules  of 
practice,  that  a  notice  must  be  given,  or  a  paper  must  be  served, 
•within  a  specified  time,  before  an  act  is  to  be  done ;  or  that  the  ad- 
Terse  party  has  a  specified  time,  after  notice  or  service,  within  which 
io  do  an  act;  if  sendee  is  made  through  the  post-office  the  time  so 
required  or  allowed  is  double  the  time  specified;  except  that  ser- 
vice of  notice  of  trial  may  be  made,  through  the  post-office,  not  less 
than  sixteen  days  before  the  day  of  trial,  including  the  day  of 
service.  Code  Civ.  Pro.,  §  798. 

IX.  PROVISIONAL  REMEDIES. 

65.  Name  the  general  provisional  remedies  in  an  action. 

The  Code  declares  the  general  provisional  remedies  to  be  five  in 
number  —  viz. :  Arrest,  injunction,  attachment,  appointment  of  a 
receiver,  and  deposit,  delivery  or  conveyance  of  property. 

a.      Arrest. 

66.  What  are  the  general  Code  provisions  relating  to  arrest? 
There  are  two  great  classes  in  which  this  order  will  be  granted. 

1.  Where  the  right  to  arrest  depends  upon  the  nature  of  the 
action. 

2.  Where  it  depends  partly  upon  extrinsic  facts. 
The  first  class  embraces  the  following  cases : 

a.  To  recover  a  fine  or  penalty. 

b.  To  recover  damages  for  a  personal  injury :  an  injury  to  prop- 
erty, including,  the  wrongful  taking,  detention,  or  conversion  of 
personal  property ;  breach  of  a  promise  to  marry :  misconduct  or 
neglect  in  office,  or  in  a  professional  employment ;  fraud  or  deceit ; 


494  QUESTIONS  AND  ANSWERS. 

or  to  recover  a  chattel  where  it  is  alleged  in  the  complaint  that  the 
chattel  or  a  part  thereof  has  been  concealed,  removed,  or  disposed  of 
so  that  it  cannot  be  found  or  taken  by  the  sheriff,  and  with  intent 
that  it  should  not  be  so  found  or  taken,  or  to  deprive  the  plaintiff 
of  the  benefit  thereof;  or  to  recover  for  money  received  or  to  re- 
cover property  or  damages  for  the  conversion  or  misapplication  of 
property  where  it  is  alleged  in  the  complaint  that  the  money  was. 
received  or  the  property  was  embezzled  or  fraudulently  misapplied 
by  a  public  officer  or  by  an  attorney,  solicitor  or  counselor,  or  by 
an  officer  or  agent  of  a  corporation  or  banking  association  in  the- 
course  of  his  employment,  or  by  a  factor,  agent,  broker,  or  other 
person  in  a  fiduciary  capacity.  Where  such  allegation  is  made  the 
plaintiff  cannot  recover,  unless  he  proves  the  same  on  the  trial  of 
the  action;  and  a  judgment  for  the  defendant  is  not  a  bar  to  the 
new  action  to  recover  the  money  or  chattel. 

c.  To  recover  moneys,  funds,  or  property  held  or  owned  by  the 
State,  or  held  or  owned  officially  or  otherwise  for  or  in  behalf  of  a 
public  or  governmental  interest  by  a  municipal  or  other  public 
corporation,  board,  officer,  custodian,  agency,  or  agent  of  the  State 
or  of  a  city,  county,  town,  village,  or  other  division,  subdivision, 
department  .or  portion  of  the  State  which  the  defendant  has  with- 
out right  obtained,  received,  converted,  or  disposed  of,  or  to  recover 
damages  for  so  obtaining,  receiving,  paying,  converting,  or  dis- 
posing of  the  same. 

d.  In  an  action  upon  contract,  express  or  implied,  other  than 
a  promise  to  marry,  where  it  is  alleged  in  the  complaint  that  the 
defendant  was  guilty  of  a  fraud  in  contracting  or  incurring  the 
liability,  or  that  he  has  since  the  making  of  the  contract,  or  in 
contemplation  of  making  of  the  same,  removed  or  disposed  of  his 
property,  with  intent  to  defraud  his  creditors,  or  is  about  to  re- 
move or  dispose  of  the  same  with  like  intent ;  but  where  such  allega- 
tion is  made  the  plaintiff  cannot  recover,  unless  he  proves  the 
fraud  on  the  trial  of  the  action ;  and  a  judgment  for  the  defendant 
is  not  a  bar  to  a  new  action  to  recover  upon  the  contract  only. 
Code  Civ.  Pro.,  §  549. 

An  order  for  arrest,  under  this  section,  can  be  granted  at  any 
time  before  final  judgment  but  cannot  be  granted  afterwards.  Code 
Civ.  Pro.,  §  551. 

The  second  class  includes  all  actions  wherein  the  judgment  de- 
manded requires  the  performance  of  an  act,  the  neglect  or  refusal 
to  perform  which  would  be  punishable  by  the  court  as  a  contempt, 
where  the  defendant  is  not  a  resident  of  the  State,  or  being  a  resi- 
dent, is  about  to  depart  therefrom,  by  reason  of  which  nonresidence 
or  departure  there  is  danger  that  a  judgment  or  an  order  requiring 
the  performance  of  the  act  will  be  rendered  ineffectual.  Code  Civ. 
Pro.,  §  550.  This  division  is  intended  as  a  substitute  for  the  writ 
of  ne  exeat,  which  is  abolished  by  section  548  of  the  Code.  An 
order  under  it  can  only  be  granted  by  the  court,  and  is  always  in 
its  discretion,  but  may  be  granted  or  served  either  before  or  after 


PLEADING  AND  PRACTICE  UNDER  NEW  YORK  CODE.      495 

final  judgment  unless  an  appeal  is  pending,  secured  in  such  man- 
lier as  to  stay  execution.  Code  Civ.  Pro.,  §  551. 

One  of  the  chief  objects  in  granting  an  order  of  arrest  is  to  pre- 
vent the  judgment  which  the  plaintiff  may  subsequently  recover 
from  being  rendered  ineffectual,  by  the  court's  not  having  juris- 
diction over,  the  person  of  the  defendant. 

It  may  be  generally  stated  that  in  a  case  where  arrest  may  be 
obtained  because  of  the  nature  of  the  action  (class  1,  supra),  before 
judgment,  execution  against  the  person  may  be  obtained  after 
judgment. 

In  all  cases,  except  those  of  the  second  class,  the  order  of  arrest 
must  be  obtained  from  a  judge  of  the  court  in  which  the  action  is 
brought,  or  from  any  county  judge.  Code  Civ.  Pro.,  §  556. 

The  papers  necessary  to  present  to  obtain  an  order  of  arrest  are : 
(1)  Summons,  (2)  Order  of  Arrest,  (3)  Affidavit,  (4)  Undertak- 
ing, with  two  sureties  for  an  amount  of  not  less  than  $250,  and  in 
any  case,  at  least  one-tenth  of  the  amount  of  bail  required  by  the 
order.  A  complaint  is  not  necessary,  and  when  served  may,  if 
verified,  be  regarded  as  an  affidavit,  but  it  is  better  to  serve  both. 
Code  Civ.  Pro.,  §  559 ;  Bishop,  Code  Practice,  §  234. 

Where  the  affidavit  is  made  upon  information  and  belief,  the 
reason  must  be  shown  why  it  was  not  made  on  knowledge,  and  the 
residence  of  the  informants  should  be  stated  with  the  reasons  why 
their  affidavits  cannot  be  obtained.  Jordan  v.  Harrison,  13  Civ. 
Pro.  447. 

The  affiant  should  also  state  the  sources  of  his  information  and 
the  grounds  of  his  belief. 

When  the  affidavit  of  a  third  person  is  needed  to  use  upon  the 
motion,  and  he  will  not  give  it  voluntarily,  his  deposition  may  be 
obtained  under  section  885.  But  when  there  is  not  time  to  wait 
for  this,  an  affidavit  on  information  and  belief  may  be  used. 

A  woman  cannot  be  arrested  on  mesne  process,  except  (1)  where 
the  order  can  be  granted  only  by  the  court;  that  is,  in  a  case 
provided  for  by  section  550  (supra) ;  and  (2)  in  an  action  to  re- 
cover damages  for  "  a  wilful  injury  to  person,  character  or  prop- 
erty." Code  Civ.  Pro.,  §  553. 

When  a  defendant  has  been  arrested  under  an  order  granted  in 
accordance  with  the  above  provisions  he  may,  at  any  time  before  he 
is  in  contempt,  where  the  order  can  be  granted  only  by  the  court,  or, 
in  any  other  case,  at  any  time  before  execution  against  his  person, 
must,  be  discharged  from  arrest,  either  upon  giving  bail,  or  upon 
depositing  the  sum  specified  in  the  order  of  arrest.  The  defend- 
ant may  give  bail,  or  make  the  deposit  immediately  upon  hi?  arrest, 
at  any  hour  of  the  day  or  night:  and  he  must  have  reasonable  op- 
portunity to  seek  for  and  to  procure  bail,  before  being  committed 
to  jail.  'Code  Civ.  Pro.,  §  573. 

A  witness  who  is  in  good  faith  subpoenaed  or  ordered  to  attend 
for  examination,  where  his  attendance  can  be  enforced  by  attach- 
ment or  commitment,  is  privileged  from  arrest  in  a  civil  action 


496  QUESTIONS  AND  ANSWERS. 

or  special  proceeding  while  going  to,  returning  from  and  remain- 
ing at  the  place  of  trial.  Code  Civ.  Pro.,  §  860.  So  also  a  party 
to  an  action  and  a  party  enticed  into  the  State.  See  Bishop,  Code 
Practice,  §  232. 

If  the  defendant  offers  sufficient  bail  he  must  be  released:  the 
sheriff  has  no  discretion  in  the  matter.  Code  Civ.  Pro.,  §§  573- 
576;  Arteaga  v.  Conner,  88  X.  Y.  403. 

67.  IVhat  are  the  qualifications  of  bail? 

1.  Each  of  the  bail  must  be  a  resident  of  and  a  householder  or 
freeholder  within  the  State. 

2.  Each  of  them  must  be  worth  the  sum  specified  in  the  order 
of  arrest,  exclusive  of  property  exempt  from  execution;  but  the 
judge  on  justification  may  allow  more  than  two  bail  to  justify, 
severally,  in  sums  less  than  that  specified  in  the  order,  if  the  whole 
justification  is  equivalent  to  that  of  two  sufficient  bail.     Code  Civ. 

Pro.,  §  579. 

b.     Injunction. 

68.  What  are  the  general  Code  provisions  relating  to  injunctions? 

In  New  York,  the  old  writ  of  injunction  is  abolished.  A  tem- 
porary injunction  may  be  granted  by  order.  Code  Civ.  Pro.,  §  602. 

"An  injunction  by  order  is  a  provisional  remedy,  and  temporary 
in  its  character.  It  assumes  a  pending  litigation  in  which  all  ques- 
tions are  to  be  settled  by  a  judgment,  and  operates  only  until  the 
judgment  is  rendered.  If  by  that  a  permanent  injunction  is 
granted,  the  temporary  one  is,  of  course,  ended,  and  equally  so  if 
a  permanent  injunction  is  in  the  end  denied."  Jackson  v.  Bunnell, 
113  X.  Y.  216.  If  a  judgment,  which  disposes  of  the  action,  does 
not  award  a  permanent  injunction,  one  cannot  be  subsequently 
granted  upon  affidavits. 

An  injunction  cannot  be  obtained  as  a  matter  of  right;  its  is- 
suance depends  upon  the  discretion  of  the  court  or  judge.  The 
Court  of  Appeals  cannot  review  the  exercise  of  this  discretion,  ex- 
cept where  the  papers  show  on  their  face  facts  which  make  an  in- 
junction improper  according  to  settled  adjudications.  Hudson 
E.  Tel.  Co.  v.  Watervliet,  etc.,  Co.,  121  N.  Y.  397;  McHenry  v. 
Jewett,  90  id.  60. 

There  are  two  divisions  under  which  all  injunctions  are  classed 
by  the  Code. 

1.  Where  the  right  depends  on  the  nature  of  the  action. 

2.  "Where  the  right  depends  on  extrinsic  facts. 

The  first  division  includes  all  cases  where  it  appears,  from  the 
complaint,  that  the  plaintiff  demands  and  is  entitled  to  a  judgment 
against  the  defendant,  restraining  the  commission  or  continuance 
of  an  act,  the  commission  or  continuance  of  which,  during  the 
pendency  of  the  action,  would  produce  injury  to  the  plaintiff.  Code 
Civ.  Pro.,  §  603. 


PLEADING  AND  PRACTICE  UXDER  XEW  YORK  CODE.      497 

The  second  division  includes  two.  classes  of  acts. 

(a)  Where  it  appears  by  affidavit  that  the  defendant  during  the 
pendency  of  the  action  is  doing,  procuring,  suffering  or  threatening 
an  act  in  violation  of  the  plaintiff's  rights,  respecting  the  subject 
of  the  action,  and  tending  to  render  judgment  ineffectual.     Code 
Civ.  Pro.,  §  604,  subs.  1. 

(b)  Where  it  appears  by  affidavit  that  the  defendant  during  the 
pendency  of  the  action  is  about  to  remove  or  dispose  of  his  prop- 
erty with  intent  to  defraud  the  plaintiff.    Code  Civ.  Pro.,  §  604, 
subs.  2.    An  affidavit  includes  a  verified  pleading.    Code  Civ.  Pro., 
§  3343,  subd.  11. 

An  injunction  order  may  generally  be  granted  by  the  court  in 
which  the  action  is  brought,  or  by  the  judge  thereof,  or  by  any 
county  judge;  where  it  is  granted  by  a  judge,  it  may  be  enforced 
as  the  order  of  court.  Code  Civ.  Pro.,  §  606. 

In  Campbell  v.  Ernest,  64  Hun  (X.  Y.),  188,  it  is  held,  that  the 
relief  provided  for  by  §  604,  subs.  1,  will  be  granted  only  in  actions 
involving  the  rights  of  the  parties  to  something  which  constitutes 
the  subject  of  the  action  in  respect  to  which  the  plaintiff  claims 
some  rights  and  seeks  some  special  relief,  and  that  it  has  no  appli- 
cation to  an  action  where  a  money  judgment  only  is  sought.  See 
also  Jerome  Co.  v.  Loeb,  59  How.  Pr.  509. 

The  injunction  order  may  be  granted  to  accompany  the  sum- 
mons, or  at  any  time  after  the  commencement  of  the  action  and 
before  final  judgment.  Code  Civ.  Pro.,  §  608. 

The  order  may  be  granted  either  upon  or  without  notice,  except 
in  special  instances.  The  order  can  be  granted  only  upon  notice 
(1)  when  directed  against  a  State  officer,  or  board  of  State  officials 
to  restrain  the  performance  of  a  duty  imposed  by  statute  (Code  Civ. 
Pro.,  §  605)  ;  (2)  when  it  suspends  the  general  and  ordinary  busi- 
ness of  a  corporation  or  to  restrain  an  officer  thereof  from  the  per- 
formance of  his  duties  (Code  Civ.  Pro.,  §  1809) ;  (3)  against  the 
Board  of  Health  of  Xew  York  city  (Greater  Xew  York  charter, 
§  1260),  and  (4)  in  all  cases  after  the  defendant  has  answered. 
Code  Civ.  Pro.,  §  609.  This  section  provides  that  when  notice  is 
given,  the.  judge  may  enjoin  the  defendant  until  the  hearing  and 
decision  of  the  application. 

Where  an  order  of  injunction  has  been  granted  ex  parte,  an 
ex  parte  application  may  be  made  on  the  papers  on  which  it  was 
granted,  to  vacate  or  modify  it,  to  the  judge  who  granted  it,  or  to 
the  Appellate  Division.  Such  an  application  cannot  be  made  with- 
out notice  to  any  other  judge  except  upon  proof  by  affidavit  of  the 
disability  or  absence  of  the  judge  who  granted  the  order  and  that 
the  delay  caused  by  giving  notice  will  expose  the  applicant  to 
great  injury.  Code  Civ.  Pro.,  §  626.  As  a  general  rule,  a  party 
must  make  his  application  on  notice.  The  above  section  is  aimed 
to  meet  a  case  where  there  is  some  statutory  restriction  or  some 
irregularity  or  insufficiency  in  the  papers. 
32 


498  QUESTIONS  AND  ANSWERS. 

c.      Attachment. 
1.     WHEN    GRANTED. 

69.  What  are  the  general  Code  provisions  relating  to  attach- 
ments? 

A  warrant  of  attachment  may  be  granted  against  the  property  of 
one  or  more  defendants  in  an  action  "  to  recover  a  sum  of  money 
only"  as  damages  for  one  of  the  following  causes: 

1.  Breach  of  contract,  express  or  implied,  other  than  a  contract 
to  marry. 

2.  Wrongful  conversion  of  personal  property. 

3.  An  injury  to  person  or  property  in  consequence  of  negligence,, 
fraud,  or  other  wrongful  act.     Code  Civ.  Pro.,  §  635. 

To  entitle  the  plaintiff  to  such  a  warrant  he  must  show,  by  affi- 
davit, to  the  satisfaction  of  the  judge  granting  the  same,  the  follow- 
ing facts : 

1.  That  one  of  the  causes  of  action  specified  above  exists  against 
the  defendant.     If  the  action  is  to  recover  damages  for  breach  of 
contract,  the  affidavit  must  show  that  the  plaintiff  is  entitled  to 
recover  a  sum  stated  therein  over  and  above   all  counterclaims 
known  to  him;  or 

2.  That  the  defendant  is  either  a  foreign  corporation  or  not  a 
resident  of  the  State ;  or  if  he  is  a  natural  person  and  a  resident  of 
the  State,  that  he  has  departed  therefrom,  with  intent  to  defraud 
his  creditors,  or  to  avoid  the  service  of  a  summons,  or  keeps  himself 
concealed  therein  with  the  like  intent;  or  if  the  defendant  is  a 
natural  person,  or  a  domestic  corporation,  that  he  or  it  has  re- 
moved, or  is  about  to  remove  property  from  the  State,  with  intent 
to  defraud  his  or  its  creditors,  or  has  assigned,  disposed  of  or 
secreted,  or  is  about  to  assign,  dispose  of  or  secrete  property,  with 
the  like  intent;  or  when,  for  the  purpose  of  procuring  credit,  or 
the  extension  of  credit,  the  defendant  has  made  a  false  statement 
in  writing,  under  his  own  hand  or  signature,  or  under  the  hand  or 
signature  of  a  duly  authorized  agent,  with  his  knowledge  and  ac- 
quiescence, as  to  his  financial  responsibility  or  standing;  or  when 

'  the  defendant  being  an  adult  and  a  resident  of  the  State,  has  been 
continuously  without  the  United  States  for  more  than  six  months 
next  before  the  granting  of  the  order  of  publication  of  the  sum- 
mons against  him,  and  has  not  made  a  designation  of  a  person 
upon  whom  to  serve  a  summons  in  his  behalf,  or  a  designation  so 
made,  no  longer  remains  in  force;  or  service  upon  the  person  so 
designated,  cannot  be»made  within  the  State,  after  diligent  effort. 
Code  Civ.  Pro.,  §  636. 

3.  An  attachment  may  also  be  granted  against  the  property  of 
one  or  more  of  the  defendants; 

Where  the  action  is  brought  to  recover  money,  funds,  credits,  or 
other  property,  held  or  owned  by  the  State,  or  held  or  owned,  offi- 
cially or  otherwise,  for  or  in  behalf  of  a  public  governmental  inter- 


PLEADING  AND  PRACTICE  UNDER  NEW  YORK  CODE.      499 

est,  by  a  municipal  or  other  public  corporation,  board,  officer, 
custodian,  agency,  or  agent,  of  the  State,  or  if  a  city, 
county,  town,  village,  or  other  division,  subdivision,  department, 
or  portion  of  the  State,  which  the  defendant  has,  without  right, 
obtained,  received,  converted,  or  disposed  of;  or  in  the  obtaining, 
reception,  payment,  conversion,  or  disposition  of  which,  without 
right,  he  has  aided  or  abetted;  or  to  recover  damages  for  so  ob- 
taining, receiving,  paying,  converting,  or  disposing  of  the  same; 
or  the  aiding  or  abetting  thereof;  or  in  an  action  in  favor  of  a 
private  person,  or  a  corporation,  brought  to  recover  damages  for  an 
injury  to  personal  property,  where  the  liability  arose,  in  whole  or  in 
part,  in  consequence  of  the  false  statements  of  the  defendant,  as  to 
his  responsibility  or  credit,  in  writing,  under  the  hand  or  signature 
of  the  defendant,  or  of  his  authorized  agent,  made  with  his  knowl- 
edge and  acquiescence.  In  order  to  entitle  the  plaintiff  to  a  war- 
rant of  attachment,  in  .1  case  specified  in  th's  section,  he  must  show, 
by  affidavit,  to  the  satisfaction  of  the  judge  granting  it,  that  a  suffi- 
cient cause  of  action  exists  against  the  defendant,  for  a  sum  stated 
in  the  affidavit.  Code  Civ.  Pro.,  §  637. 

The  United  States  statutes  for  the  organization  of  national 
banks  contain  a  provision  that  "  no  attachment,  injunction  or  exe- 
cution shall  be  issued  against  such  association,  or  its  property, 
before  final  judgment  in  any  suit,  action,  or  proceeding  in  any 
State,  county  or  municipal  court,"  Rev.  Stat.  TJ.  S.,  §  5242. 

It  has  been  held  that  an  attachment  can'not  be  obtained  against 
the  stock  of  a  foreign  corporation,  under  section  647  of  the  Code, 
at  least  where  the  defendant  is  not  a  resident  of  the  State.  Plimp- 
ton v.  Bigelow,  93  X.  Y.  592. 

A  warrant  of  attachment  is  obtained  by  presenting  to  a  judge 
an  affidavit  (which  includes  a  verified  pleading,  Code  Civ.  Pro., 
§  3343,  subd.  11),  a  warrant  of  attachment  and  a  satisfactory  bond. 
It  is  customary  to  serve  a  summons.  See  Code  Civ.  Pro.,  §  416, 
and  Ques.  2  (supra).  The  warrant  is  subscribed  by  the  attorney, 
and  if  the  application  is  granted,  by  the  judge.  These  papers  and 
copies  are  given  to  the  sheriff  and  he  attaches  the  property  in  the 
following  way :  In  the  case  of  real  property,  by  filing  a  notice  and 
description  of  the  property  with  the  county  clerk.  In  the  case  of 
personal  property,  capable  of  manual  delivery  including  bonds, 
promissory  notes,  etc.,  by  taking  the  same  into  his  actual  custody 
and  by  serving  a  copy  of  the  warrant  and  affidavits  upon  the  pen 
son  from  whose  possession  the  property  is  taken.  In  the  case  of 
other  personal  property,  by  leaving  a  certified  copy  of  warrant  and 
notice  showing  the  property  attached,  with  the  person  holding  the 
same.  If  the  property  attached  consists  of  a  simple  demand,  these 
papers  are  left  with  the  person  against  whom  it  exists ;  if  of  stock 
of  a  corporation,  with  the  president,  secretary,  cashier,  or  manag- 
ing agent  thereof;  if  of  an  interest  in  the  estate  of  a  decedent, 
"with  the  executor  or  administrator.  Code  Civ.  Pro..  !;  649. 

The  warrant  may  be  granted  by  a  judge  of  the  court,  or  a  county 


500  QUESTIONS  AND  ANSWERS. 

judge,  and  may  accompany  the  summons,  in  which  case  the  sum- 
mons must  be  served  personally  within  or  without  the  State  or 
publication  be  begun  within  thirty  days  after  the  granting  of  the 
warrant.  The  affidavit  in  this  case  will  state  that  the  plaintiff 
"  is  about  to  commence  an  action  "  for  the  cause  stated.  Code  Civ. 
Pro.,  §  638;  Storber  v.  Thudium,  44  Hun  (X.  Y.),  70;  Am.  Bank 
Y.  Voisin,  id.  85. 

The  question  of  the  sufficiency  of  the  affidavit  is  not,  as  a  rule, 
gone  into  when  the  warrant  is  granted;  this  question  comes  up  on 
motion  to  vacate  the  attachment,  which  is  heard  at  Special  Term. 
See  infra. 

The  bond  must  be  for  $250,  at  least,  to  secure  the  defendant 
for  costs  and  damages  if  the  attachment  is  vacated,  and  must 
have  two  sureties  or  be  /that  of  a  surety  company ;  and  it  is  no  de- 
fense to  an  action  on  this  bond,  that  the  court  did  not  have  power 
to  grant  the  attachment  for  want  of  jurisdiction  or  for  any  other 
cause.  Code  Civ.  Pro.,  §  642. 

The  plaintiff  procuring  the  warrant  must,  within  ten  days  after 
the  granting  thereof,  cause  the  affidavits,  upon  which  it  was 
granted,  to  be  filed  in  the  office  of  the  clerk.  Code  Civ.  Pro.,  §  639 ; 
Lewis  v.  Douglass,  53  Hun  (N.  Y.),  587. 

2.    THE    AFFIDAVIT. 

An  affidavit  which  states  a  mere  opinion  will  not  be  sufficient, 
however  emphatic  its  language  may  be.  Where  the  facts  are 
stated  upon  information  and  belief  the  grounds  and  sources  thereof 
must  be  thoroughly  explained,  and  certainly  in  every  case  where  the 
affidavit  is  made  upon  personal  knowledge  it  will  be  insufficient, 
unless  it  is  so  drawn  that  if  the  facts  alleged  are  not  true  the 
affiant  may  be  prosecuted  for  perjury.  In  Hoormann  v.  Climax 
Cycle  Co./9  App.  Div.  579,  587,  the  court  said: 

"  The  true  test  of  the  sufficiency  of  an  affidavit  is  the  possibility 
of  assigning  perjury  upon  it,  if  false.  People  ex  rel.  Cook  v. 
Becker,  20  N.  Y.  354.  This  test  is  essentially  applicable  to  affi- 
davits used  to  secure  attachments." 

The  Code  does  not  require,  however,  that  the  affiant  must  have 
personal  knowledge.  An  affidavit  made  by  the  agent  or  the  attor- 
ney of  the  attaching  creditor,  averring  that  the  facts  required 
"to  be  shown  by  section  636  of  the  Code  exist,  as  affiant  is  in- 
formed and  believes,  stating  the  source  of  his  information  and  the 
grounds  of  his  belief,  is  sufficient  to  confer  jurisdiction  on  a  judge 
to  grant  an  attachment.  *****  jf  the  source  of  infor- 
mation be  a  person,  it  must  be  by  one  whom  the  court  can  see 
probably  had  personal  knowledge  of  the  facts  communicated,  and 
the  means  by  which  the  communication  is  made  must  be  one  which 
experience  has  shown  to  be  usually  reliable,  and  one  which  a  pru- 
dent man  would  employ  in  a  matter  of  importance  to  himself.'* 
Murphy  v.  Jack,  76  Hun  (N.  Y.),  356. 


PLEADING  AND  PRACTICE  UNDER  NEW  YORK  CODE.      501 

Thus,  information  may,  it  would  seem,  be  derived  by  cable; 
Ladenburg  v.  Com.  Bank,  148  N.  Y.  202;  Reichenback  v.  Speth- 
mann,  5  Law  Bull.  42.  It  may  be  derived  by  telephone.  Murphy 
v.  Jack,  142  N.  Y.  215.  See  also  People  v.  McKane,  143  id.  455, 
474. 

If  the  information  is  derived  from  conversation  over  the  tele- 
phone, it  is  essential  that  the  affiant  recognize  the  voice  of  the 
plaintiff  and  that  he  so  state  in  his  affidavit.  Murphy  v.  Jack,  142 
X.  Y.  215. 

Even  where  the  affidavit  is  upon  knowledge,  the  courts  in  the 
First  Department  will  hold  it  insufficient  unless  fact  appear  indi- 
cating that  the  deponent  was  in  a  position  to  have  such  knowledge. 
1  Rumsey  Prac.,  2d  ed.,  631. 

It  is  sufficient  if  the  affidavit  furnishes  evidence  from  which  the 
judge  may  be  lawfully  satisfied  of  the  truth  of  the  matters  required 
to  be  shown.  Lamkin  v.  Douglass,  27  Hun  (N.  Y.),  517. 

3.    JURISDICTION. 

"  Xonresidents,  as  well  as  residents,  may  sue  out  an  attachment, 
but  if  the  defendant  is  a  foreign  corporation,  an  attachment  cannot 
be  obtained  by  a  nonresident  or  another  foreign  corporation  unless 
it  appears  by  affidavit  that  a  cause  of  action  exists  in  favor  of  the 
plaintiff  for  a  breach  of  a  contract  made  within  the  State,  or 
relating  to  property  situated  within  the  State  at  the  time  of  the 
making  thereof."  (2  Xichols  X.  Y.  Prac.  1383.) 

An  affidavit  upon  which  a  warrant  of  attachment  is  granted,  if 
sufficient  to  call  upon  the  court  to  exercise  its  discretion,  will 
suffice  to  give  jurisdiction.  Van  Loon  v.  Lyons,  61  X.  Y.  24; 
Schoonmaker  v.  Spencer,  54  id.  366;  Murphy  v.  Jack,  supra; 
Waterbury  v.  Waterbury,  76  Hun  (X1.  Y.),  51. 

4.    VACATING  OR  MODIFYING   THE   WARRANT. 

The  defendant,  or  a  person  who  has  acquired  a  lien  upon,  or  in- 
terest in,  his  property,  after  it  was  attached,  may,  at  any  time  bo- 
fore  the  actual  application  of  the  attached  property,  or  the  proceeds 
thereof,  to  the  payment  of  a  judgment  recovered  in  the  action, 
apply  to  vacate  or  modify  the  warrant,  or  to  increase  the  security 
given  by  the  plaintiff,  or  for  one  or  more  of  those  forms  of  relief, 
together  or  in  the  alternative.  Code  Civ.  Pro.,  §  682. 

And  at  any  time  after  appearance  by  the  defendant  and  before 
final  judgment  he  may  apply  to  the  judge  or  court  who  granted 
the  warrant  for  an  order  to  discharge  the  attachment,  as  to  the 
whole  or  a  part  of  the  property  attached.  Code  Civ.  Pro.,  §  687. 

Irregularities  in  the  affidavit  on  which  the  warrant  of  attachment 
was  granted  which  are  not  specified  in  the  notice  of  motion  to  set 
aside  the  attachment,  cannot  be  relied  upon  in  support  of  the 
motion.  2  Xichols  Prac.  1520. 

Where  the  defendant  in  his  affidavit,  attached  to  the  notice  of 
motion  to  vacate,  sets  forth  additional  facts,  however  unimportant, 


503  QUESTIONS  AND  ANSWERS. 

and  does  not  simply  move  to  vacate  upon  the  >apers  on  which  the 
warrant  was  granted,  the  plaintiff,  under  section  683,  is  entitled  to 
put  in  additional  affidavits,  tending  to  sustain  any  ground  for  the 
attachment  recited  in  the  warrant.  Godfrey  v.  Godfrey,  75  X. 
Y.  434;  Steuben  Co.  Bank  v.  Alberger,  id.  179;  Kneeland  on 
Attachments,  §  519.  When  the  application  is  made  on  the  papers 
on  which  the  warrant  was  issued,  no  additional  affidavits  can  be 
read  in  support  of  the  attachment  or  to  defeat  it.  Buhl  v.  Ball, 
41  Hun  (N.  Y.),  61;  Smith  v.  Arnold,  33  id.  484;  Sutherland 
v.  Bradner,  34  id.  519.  The  notice  of  motion  must  specify  any 
irregularity  upon  which  the  motion  is  based  (Genl.  Eules  Prac. 
37),  but  when  it  is  based  on  the  merits,  the  notice  need  specify 
no  special  grounds.  Walts  v.  Nichols,  32  Hun  (X.  Y.),  276. 

5.    ATTACHMENT  OF  PARTNERSHIP  PROPERTY. 

Partnership  property  may  be  levied  upon  under  an  attachment 
against  one  partner.  Code  Civ.  Pro.,  §  693 ;  Smith  v.  Orser,  42  N. 
Y.  132.  But  partnership  choses  in  action,  such  as  debts  due  to  the 
firm,  cannot  be  seized.  Barry  v.  Fisher,  8  Abb.  Pr.  (X.  S.)  369. 

Only  the  interest  of  the  debtor  partner  can  be  seized ;  that  is,  his 
distributive  share  on  liquidation.  Staats  v.  Bristow,  73  X.  Y.  264. 

The  other  partners  can  obtain  a  release  of  the  goods  from  the 
attachment,  by  giving  a  bond  securing  the  payment  of  any  judg- 
ment that  may  be  recovered  before  the  attachment  is  vacated. 
Code  Civ.  Pro.,  §§  693,  694. 

d.     Beplevin. 
1.    NECESSARY  PAPERS. 

70.  What  are  the  general  Code  provisions  relating  to  replevin? 

An  action  of  replevin  is  commenced  by  the  service  of  a  sum- 
mons. The  chattel  may,  however,  be  replevied- before  the  service 
of  the  summons,  in  which  case  the  court  acquires  jurisdiction  as 
in  other  provisional  remedies.  Code  Civ.  Pro.,  §  1693.  See  also 
Ques.  2  (supra). 
•  The  necessary  papers  in  order  to  replevy  goods  are, 

1.  An  affidavit.     Code  Civ.   Pro.,   §   1694.     This  is  ordinarily 
made  by  the  plaintiff,  but  it  may  be  made  by  his  agent  or  attorney, 
if  the  material  facts  are  within  his  personal  knowledge:  or  if  the 
plaintiff  is  not  within  the  county  where  the  attorney  resides  or  has 
liis  office,  or  is  not  capable  of  making  the  affidavit.    Code  Civ.  Pro., 
f  1712.     When  it  is  made  by  his  agent  or  attorney  it  must  state 
the  source  of  information  and  the  grounds  of  belief,  and  the  reason 
why  it  is  not  made  by  the  plaintiff  as  in  the  case  of  an  affidavit 
for  attachment. 

2.  The  requisition.    This  is  a  direction  to  the  sheriff  to  replevy 
the  goods,  and  is  in  these  words: 


PLEADING  AND  PRACTICE  UNDER  XEW  YORK  CODE.      503 

"  To  the  sheriff  of  You  are  hereby  required  to 

replevy  the  chattels  described  in  the  within  affidavit,  from  the 
defendant. 

Dated, ...  19 


Plaintiff's  Attorney. 

This  is  deemed  the  mandate  of  the  court  and  may  be  directed  to 
the  sheriff  of  a  particular  county,  or,  generally,  to  the  sheriff  of 
any  county  where  the  chattel  is  found.  Code  Civ.  Pro.,  §  1694. 

3.  An  undertaking.  There  must  be  two  sureties  or  a  surety 
company.  The  obligation  is  for  twice  the  value  of  the  chattels  as 
stated  in  the  affidavit,  and  the  sureties  are  bound,  first,  for  the 
prosecution  of  the  action ;  second,  for  the  return  of  the  chattels  to 
the  defendant,  if  such  return  is  adjudged,  or  if  the  action  abates 
or  is  discontinued;  third,  for  the  payment  of  any  sum  awarded  to 
the  defendant  by  the  judgment.  Code  Civ.  Pro.,  §  1699. 

2.    THE  AFFIDAVIT. 

The  affidavit  must  contain  allegations  of  the  following  facts, 
Code  Civ.  Pro.,  §  1695 : 

1.  That  the  plaintiff  is  the  owner  of  the  chattel,  or  is  entitled  to 
the  possession  thereof  by  reason  of  a  special  property  right,  in 
which  case  the  facts  showing  such  property  right  must  be  set  forth. 
Depew  v.  Leal,  2  Abb.  Pr.  131. 

2.  The  wrongful  detention  by  the  defendant;  and  where  demand 
is  necessary,  that  it  has  been  made.    McAdam  v.  Walbrau,  8  Civ. 
Pro.  451. 

3.  The  alleged  cause  of  detention,  according  to  the  best  knowl- 
edge, information  and  belief  of  the  person  making  the  affidavit. 

4.  That  it.  has  not  been  taken  by  virtue  of  a  warrant,  against 
the  plaintiff,  for  the  collection  of  a  tax,  assessment,  or  fine,  issued 
in  pursuance  of  a  statute  of  the  State,  or  of  the  United  States; 
or,  if  it  has  been  taken  under  color  of  such  a  warrant,  either  that 
the  taking  was  unlawful,  by  reason  of  defects  in  the  process,  or 
other  causes  specified,  or  that  the  detention  is  unlawful,  by  reason 
of  the  facts  specified,  which  have  subsequently  occurred. 

5.  That  it  has  not  been  seized  by  virtue  of  an  execution  or  war- 
rant of  attachment,  against  the  property  of  the  plaintiff,  or  of  any 
person  from  or  through  whom  the  plaintiff  has  derived  title  to  the 
chattel,  since  the  seizure  thereof;  or,  if  it  has  been  so  seized,  that  it 
was  exempt,  from  the  seizure,  by  reason  of  facts  specified,  or  that 
its  detention  is  unlawful,  by  reason  of  facts  specified  which  have 
subsequently  occurred. 

6.  Its  actual  value.     Code  Civ.  Pro.,  §  1695. 

Where  the  affidavit  describes  two  or  more  chattels  of  the  same 
kind,  the  number,  bulk,  weight,  quantity  or  measurement  of  the 
chattels  must  be  stated.  Code  Civ.  Pro.,'§  1697. 


504:  QUESTIONS  AND  ANSWERS. 

3.  RIGHTS  OF  THE  DEFENDANT. 

After  the  chattels  have  been  replevied  and  a  copy  of  the  affidavit, 
requisition  and  undertaking  served,  the  defendant  may  (1)  except 
to  the  plaintiff's  sureties  at  any  time  within  three  days;  (2)  de- 
mand a  return  of  the  property. 

If  he  does  neither,  the  sheriff  must  deliver  the  goods  to  the  plain- 
tiff unless  a  claim  to  the  chattel,  supported  by  affidavit,  is  made 
by  a  third  person,  in  which  case  the  sheriff  is  entitled  to  indemnity 
from  the  plaintiff  against  such  claim.  Code  Civ.  Pro.,  §§  1703, 
1704,  1706,  1709.  The  defendant  cannot  both  except  to  the  plain- 
tiff's sureties  and  demand  a  return  of  the  property;  excepting  to 
the  sureties  is  a  waiver  of  the  right  to  reclaim.  Hofheimer  v. 
Campbell,  59  N.  Y.  269. 

The  demand  for  a  return  of  the  goods  must  be  based  upon: 
(1)  An  affidavit.  (2)  An  undertaking. 

The  affidavit  may  be  on  information  and  belief;  Lange  v.  Lewi, 
58  N.  Y.  Super.  Ct.  265;  and  must  allege  that  defendant  is  the 
owner  of  the  chattel,  or  lawfully  entitled  to  its  possession  by  virtue 
of  a  special  property,  stating  the  facts  in  the  latter  case. 

The  undertaking  must  have  two  sureties,  or  a  surety  company. 
The  obligation  must  be  for  twice  the  value  of  the  chattel  as  stated 
in  the  plaintiff's  affidavit  (therefore  the  necessity  of  stating  actual 
value  by  plaintiff),  and  the  sureties  are  bound  (1)  to  deliver  the 
chattel  to  plaintiff,  if  delivery  thereof  is  adjudged,  or  the  action 
abates,  because  of  defendant's  death;  (2)  for  the  payment  to  the 
plaintiff  of  any  sum  which  the  judgment  awards  against  the  de- 
fendant. Code  Civ.  Pro.,  §  1704. 

A  defendant  may  even  be  arrested  in  an  action  to  recover  a 
chattel,  where  it  is  alleged  in  the  complaint  that  the  chattel,  or  a 
part  thereof,  has  been  concealed,  removed,  or  disposed  of,  so  that 
it  cannot  be  found  or  taken  by  the  sheriff,  and  with  intent  that  it 
should  not  be  so  found  or  taken.  Code  Civ.  Pro.,  §  549,  subd.  2. 

e.     Beceivers. 

71.  What  are  the  general  Code  provisions  relating  to  receivers? 

In  addition  to  the  cases  where  the  appointment  is  specially  pro- 
vided for  by  law,  a  receiver  of  property  which  is  the  subject  of  an 
action  in  the  Supreme  Court,  or  a  County  Court,  may  be  appointed 
by  the  court  in  either  of  the  following  cases : 

1.  Before  final  judgment,  on  the  application  of  a  party  who  es- 
tablishes an  apparent  right  or  interest  in  property  in  the  possession 
of  the  adverse  party,  and  there  is  danger  that  it  will  be  removed 
beyond  the  jurisdiction  of  the  court  or  lost,  materially  injured,  or 
destroyed. 

2.  By  or  after  final  judgment  to  carry  the  judgment  into  effect, 
or  to  dispose  of  the  property  according  to  its  directions. 

3.  After  final  judgment  to  preserve  the  property  during  the- 
pendency  of  appeal. 


PLEADING  AND  PRACTICE  UNDER  NEW  YORK  CODE.      505 

The  word  "property"  includes  rents,  profits,  or  other  income, 
and  increase  of  property,  real  or  personal.  Code  Civ.  Pro.,  §  713. 

Xotice  of  an  application  for  appointment  of  a  receiver  before 
judgment  must  be  given  to  the  adverse  party,  unless  he  has  failed  to 
appear  and  the  time  limited  for  his  appearance  has  expired.  But 
in  cases  where  service  of  summons  without  the  State,  or  by  pub- 
lication, has  been  allowed,  the  court  may  in  its  discretion  appoint  a 
temporary  receiver.  Code  Civ.  Pro.,  §  714. 

The  papers  necessary  to  present  to  the  court  to  procure  the 
appointment  of  a  receiver  are  (1)  petition;  (2)  affidavit;  (3)  order. 

A  receiver  appointed  by  or  pursuant  to  an  order  or  a  judgment, 
in  an  action  in  the  Supreme  Court,  or  a  County  Court,  or  in  a 
special  proceeding  for  the  voluntary  dissolution  of  a  corporation, 
may  take  and  hold  real  property,  upon  such  trusts  and  for  such 
purposes  as  the  court  directs,  subject  to  the  direction  of  the  court, 
from  time  to  time,  respecting  the  disposition  thereof.  Code  Civ 
Pro.,  §  716. 

The  common  cases  in  which  a  receiver  is  appointed  under  the 
above  section  are : 

1.  In  cases  of  executors  and  administrators,  and  trustees.    Tur- 
ner v.  Crichton,  53  X.  Y.  641. 

2.  In  cases  of  mortgages  and  liens.    Eider  v.  Bagley,  84  N".  Y. 
461. 

3.  In  cases  of  partnerships.     McElvey  v.  Lewis,  76  N".  Y.  373. 

4.  In  creditors'  actions.    Code  Civ.  Pro.,  §  1877. 

5.  In  actions  relating  to  real  property.    King  v.  King,  41  X.  Y. 
Super.  Ct.  516. 

6.  In  actions  to  wind  up  corporations.    Code  Civ.  Pro.,  §  1788. 
See  Code  Civ.  Pro.,  §  1810. 

f.      Deposit,    Delivery   or   Conveyance   of    Property. 

72.  What  are  the  general  Code  provisions  relating  to  deposit, 
delivery  or  conveyance  of  property? 

Where  it  is  admitted  by  the  pleading  or  examination  of  a  party 
that  he  has  in  his  possession  or  under  his  control  money  or  other 
personal  property  capable  of  delivery,  which,  being  the  subject  of 
the  action  or  special  proceeding,  is  held  by  him  as  trustee  for  an- 
other party,  or  which  belongs  or  is  due  to  another  party,  the  court 
may  in  its  discretion  grant  an  order,  upon  notice,  that  it  be  paid 
into  or  deposited  in  court  or  delivered  to  that  party,  with  or  with- 
out security,  subject  to  the  further  discretion  of  the  court. 

If  a  party  refuses  to  obey  such  a  mandate  as  is  described  above, 
or  one  of  the  same  nature,  he  may  be  punished  for  contempt ;  and 
the  court  may  direct  the  sheriff  to  take  and  deposit  or  deliver  the 
money  or  personal  property,  or  convey  the  property  in  accordance 
with  its  direction.  Code  Civ.  Pro.,  §§  717,  718. 


506  QUESTIONS  AND  ANSWERS. 

X.  Lis  PENDENS. 
73.  What  is  the  object  of  filing  a  notice  of  pendency  of  an  action  ? 

The  object  is  to  give  constructive  notice  to  all  the  world,  from 
the  time  of  filing  the  notice  that  a  suit  is  pending  in  a  certain 
court,  in  which  the  title  to  the  property  described  in  the  Us  pendens 
is  involved;  and  to  warn  all  persons  who  purchase  or  acquire  liens 
upon  the  property  during  the  pendency  of  the  action  that  they 
take  title  subject  to  the  final  decree  of  the  court  in  reference 
thereto.  Code  Civ.  Pro.,  §  1671. 

74.  What  must  a  Us  pendens  contain,  and  where  should  it  be 
filed? 

The  names  of  the  parties  to  the  action  and  the  object  thereof, 
together  with  a  description  of  the  property  affected  thereby.  Such 
a  notice  should  be  filed  in  the  clerk's  office  of  every  county  where 
the  property  is  situated,  and  it  may  be  filed  with  the  complaint  be- 
fore the  summons  is  served,  or  at  any  time  before  final  judgment. 
Code  Civ.  Pro.,  §  1670. 

75.  In  what  actions  is  it  advisable  to  file  such  a  notice? 

In  an  action  brought  to  recover  a  judgment  affecting  the  title  to 
or  the  possession,  use,  or  enjoyment  of  real  property,  the  plaintiff 
may,  when  he  files  his  complaint,  or  at  any  time  before  final  judg- 
ment, file  a  Us  pendens,  and  in  all  such  cases  it  is  advisable  so  to 
do.  Code  Civ.  Pro.,  §§  1670-1674. 

76.  In  what  actions  must  such  a  notice  be  filed? 

In  actions  for  the  foreclosure  of  mortgages.  The  notice  must 
be  filed  at  least  twenty  days  before  final  judgment  of  sale.  Code 
Civ.  Pro.,  §  1631.  Genl.  Rules  Prac.  60. 

XI.  INTERPLEADER. 

77.  In  what  actions  may  a  defendant  interplead  other  parties 
under  the  Code? 

1.  Actions  to  recover  upon  a  contract. 

2.  Actions  of  ejectment. 

3.  Actions  to  recover  a  chattel.     Code  Civ.  Pro.,  §  820. 

78.  What  must  a  defendant  show  to  obtain  an  order  to  inter- 
plead  another  person  in  his  place? 

He  must  apply  before  answer  and  show  by  affidavit : 

1.  That  a  person  not  a  party  to  the  action  makes  a  demand 
against  him. 

2.  That  the  demand  is  made  in  reference  to  the  same  debt  or 
property. 

3.  That  there  is  no  collusion. 


PLEADING  AND  PRACTICE  UNDEE  NEW  YORK  CODE.      507 

The  court  may  then  grant  an  order  substituting  the  person  so 
claiming  in  place  of  the  defendant,  and  discharging  the  latter 
irom  liability  on  his  paying  into  court  the  amount  of  the  debt, 
or  delivering  the  possession  of  the  property  or  its  value  to  such 
jperson  as  the  court  directs. 

AYhere,  also,  the  defendant  disputes  his  liability  or  asserts  some 
interest  in  the  subject-matter  of  the  controversy,  he  may  ask  for 
.an  order  joining  any  other  claimants  as  codefendants  in  the  action. 

The  granting  of  such  an  order  may  be  on  certain  terms,  and  is 
in  the  discretion  of  the  court.  Code  Civ.  Pro.,  §  820. 

XII.  EVIDENCE. 

79.  To  what  extent  and  with  what  qualifications  are  parties  and 
persons  interested  in  the  event  of  an  action  competent  to  testify 
in  the  New  York  courts? 

As  a  general  rule,  all  parties  and  persons  interested  may  testify 
in  their  own  behalf ;  but  upon  the  trial  of  an  action,  or  the  hearing 
upon  the  merits  of  a  special  proceeding,  a  party  or  person  interested 
in  the  event,  or  a  person  from,  through,  or  under  whom  such  a 
party  or  interested  person  derives  his  interest  or  title,  by  assign- 
ment or  otherwise,  shall  not  be  examined  as  a  witness  in  his  own 
behalf  or  interest,  or  in  behalf  of  the  party  succeeding  to  his  title 
or  interest  against  the  executor,  administrator,  or  survivor  of  a  de- 
ceased person,  or  the  committee  of  a  lunatic,  or  a  person  deriving 
his  title  or  interest  from,  through,  or  under  a  deceased  person  or 
lunatic,  by  assignment  or  otherwise,  concerning  a  personal  trans- 
action or  communication  between  the  witness  and  the  deceased  per- 
son or  lunatic,  except  where  the  executor,  administrator,  survivor, 
committee,  or  person  so  deriving  title  or  interest  is  examined  in  his 
own  behalf,  or  the  testimony  of  the  lunatic  or  deceased  person  is 
given  in  evidence  concerning  the  same  transaction  or  communica- 
tion. A  person  shall  not  be  deemed  interested  by  reason  of  being 
a  stockholder  or  officer  of  any  banking  corporation  which  is  a  party 
to  the  action  or  proceeding  or  interested  in  the  event  thereof. 

It  may  also  be  stated  that  a  husband  or  a  wife  is  not  competent 
to  testify  against  the  other  upon  the  trial  of  an  action,  or  the  hear- 
ing upon  the  merits  of  a  special  proceeding  founded  upon  an  allega- 
tion of  adultery,  except  to  prove  the  marriage  or  disprove  the  alle- 
gation of  adultery.  Code  Civ.  Pro.,  §§  828,  829,  831. 

80.  Under  what  circumstances  may  a  clergyman,  physician,  or 
attorney  testify  as  to  professional  confidences? 

A  clergyman  shall  not  be  allowed  to  disclose  confessions  made 
to  him,  as  such,  enjoined  by  the  rules  or  practice  of  his  religion-; 
body,  unless  such  restriction  be  expressly  waived  at  the  examination 
by  the  person  so  confessing,  or  by  stipulation  of  his  attorney  in 
advance  of  the  examination,  nor  shall  an  attorney  or  his  dork. 
stenographer,  or  other  employee,  be  allowed  to  disclose  any  pro- 


508  QUESTIONS  AND  ANSWERS. 

fessional  communication  made  to  him  by  his  client,  nor  his  advice 
thereon  unless  the  client  makes  a  similar  waiver.  Code  Civ.  Pro.r 
§§  833,  835.  Xo  physician  or  registered  nurse  shall  be  allowed,  in. 
the  absence  of  a  similar  waiver  from  the  patient,  to  disclose  any 
information  which  he  acquired  in  a  professional  capacity,  and 
which  was  necessary  to  enable  him  to  act  in  that  capacity  save  that 
(1)  if  the  patient  is  a  child  under  sixteen  and  the  information  in- 
dictates  that  he  has  been  the  victim  of  a  crime,  the  testimony  may 
be  given  where  the  crime  is  the  subject  of  inquiry,  and  (2)  testi- 
mony may  be  given  as  to  the  mental  or  physical  condition  of  a  de- 
ceased patient,  except  such  facts  as  would  tend  to  disgrace  his- 
memory,  when  the  witness'  disqualification  has  been  waived  by  the 
personal  representatives  of  the  deceased,  or  the  party  in  interest 
where  the  validity  of  the  will  of  the  deceased  is  in  question.  Code 
Civ.  Pro.,  §§  833-836. 

XIII.  TRIALS;  INCLUDING  JURORS  AND  JURIES. 

81.  What  are  the  civil  actions  in  which  a  jury  trial  is  a  matter 
of  right? 

In  each  of  the  following  actions  an  issue  of  fact  must  be  tried 
by  a  jury,  unless  a  jury  trial  is  waived  or  a  reference  is  directed : 

1.  An  action  in  which  the  complaint  demands  judgment  for  a 
sum  of  money  only. 

2.  An  action  of  ejectment ;  for  dower ;  for  waste ;  for  a  nuisance  ; 
or  to  recover  a  chattel.     Code  Civ.  Pro.,  §  968. 

82.  What  issues  are  triable  without  a  jury? 

An  issue  of  law,  in  any  action,  and  an  issue  of  fact  in  an  action 
not  specified  in  the  last  question,  or  wherein  provision  for  a  trial  by 
jury  is  not  expressly  made  by  law,  must  be  tried  by  the  court,  un- 
less a  reference  or  a  jury  trial  is  directed.  Code  Civ.  Pro.,  §  969. 

83.  State  the  general  rules  governing  the  granting  of  new  trials 
in  civil  actions,  and  the  manner  of  making  application  for  a  new 
trial. 

1.  The  judge,  presiding  at  a  trial  by  a  jury,  may,  in  his  dis- 
cretion, entertain  a  motion,  made  upon  his  minutes,  at  the  same 
term,  to  set  aside  the  verdict  or  a  direction  dismissing  the  com- 
plaint and  grant  a  new  trial  upon  exceptions;  or  because  the  ver- 
dict is  for  excessive  or  insufficient  damages,  or  otherwise  contrary 
to  the  evidence,  or  contrary  to  law.     Code  Civ.  Pro.,  §  999. 

2.  Upon  order  of  such  judge,  during  the  same  term,  exceptions- 
taken  at  a  trial  by  jury  may  be  brought  on  for  hearing  in  the  first 
instance  at  the  Appellate  Division,  and  the  judgment  suspended 
meantime.     Such  hearing  is  brought  on  by  a  motion  for  a  new 
trial  at  the  Appellate  Division.     Code  Civ.  Pro.,  §  1000. 

3.  Where,  after  trial  by  referee  or  by  court  without  a  jury,  an 


PLEADING  AND  PRACTICE  UNDER  XEW  YORK  CODE.      509 

interlocutory  judgment  is  directed;  and  further  proceedings  before 
"die  court,  a  judge,  or  a  referee  are  necessary  before  final  judgment 
can  be  entered;  a  motion  for  a  new  trial  upon  exceptions  may  be 
made  at  the  Appellate  Division  after  entry  of  the  interlocutory 
judgment  and  before  the  hearing  directed  therein.  Code  Civ.  Pro., 
§  1001. 

4.  Except  as  above,  motions  for  a  new  trial  must  be  made  at 
Special  Term.  If  made  upon  an  allegation  of  error  in  a  finding 
of  fact  or  ruling  of  law,  such  motion  must  be  made  before  the  ex- 
piration of  time  to  appeal,  and  before  the  trial  judge  unless  he 
specially  directs  otherwise,  or  unless  he  is  dead  or  disqualified. 
Code  Civ.  Pro.,  §  1002. 

It  is  not  necessary  to  make  a  case,  for  the  purpose  of  moving  for 
a  new  trial,  upon  the  minutes  of  the  judge,  who  presided  at  a  trial 
by  jury;  or  upon  an  allegation  of  irregularity,  or  surprise;  or 
where  a  party  intends  to  appeal  from  a  judgment  entered  upon  a 
referee's  report,  or  a  decision  of  the  court  upon  a  trial,  without  a 
jury,  and  to  rely  only  upon  exceptions,  taken  as  prescribed  in  sec- 
tion 994  of  this' act.  "  Code  Civ.  Pro.,  §  998. 

In  general,  motions  for  new  trial  will  be  granted  where  there 
has  been  material  error  or  irregularity  in  the  conduct  of  the  trial, 
and  frequently  where  the  moving  party  has  since  the  trial  dis- 
covered new  and  important  evidence. 

84.  In  what  cases  may  there  be  a  compulsory  reference  in  issues 
of  fact? 

Where  the  trial  will  require  the  examination  of  a  long  account 
on  either  side,  and  will  not  require  the  decision  of  difficult  ques- 
tions of  law.  Dane  v.  Ins.  Co.,  21  Hun  (X.  Y.),  259;  Code  Civ. 
Pro.,  §  1013.  In  an  action  triable  by  the  court  without  a  jury,  a 
reference  may  be  made  to  decide  the  whole  issue,  or  any  of  the 
issues ;  or  to  report  the  referee's  finding  upon  one  or  more  specific 
questions  of  fact  involved  in  the  issue.  Code  Civ.  Pro.,  §  1013. 

85.  What  are  the  qualifications  of  a  trial  juror  with  respect  to 
age  and  property? 

In  order  to  be  qualified  to  serve  as  a  trial  juror  in  a  court  of 
record  a  person  must  be: 

1.  A  male  citizen  of  the  United  States  and  a  resident  of  the 
county. 

2.  Xot  less  ttan  twenty-one  nor  more  than  seventy  years  of  age. 

3.  Assessed  for  personal  property  belonging  to  him,  in  his  own 
right,  to  the  amount  of  $250;  or  the  owner  of  a  freehold  estate  in 
real  property,  situated  in  the  county,  belonging  to  him  in  his  own 
riffht,  of  the  value  of  $150;  or  the  husband  of  a  woman  who  is 
owner  of  a  like  freehold  estate  belonging  to  her.  in  her  own  n>ht. 

4.  In  the  possession  of  his  natural  faculties,  and  not  infirm  or 
decrepit. 


510  QUESTIONS  AND  ANSWERS. 

5.  Free  from  all  legal  exceptions;  of  fair  character;  of  approved 
integrity;  of  sound  judgment,  and  well  informed. 

*But  a  person  who  was  assessed  on  the  last  assessment-roll  of  the 
town  for  land  in  his  possession,  held  under  a  contract  for  the  pur- 
chase thereof,  upon  which  improvements,  owned  by  him,  have  been 
made  to  the  value  of  $150,  is  qualified  to  serve  as  a  trial  juror, 
although  he  does  not  possess  either  of  the  qualifications  specified 
in  subdivision  third  of  the  last  paragraph,  provided  he  is  qualified 
in  every  other  respect.  Code  Civ.  Pro.,  §§  1027,  1028. 

There  are  also  certain  special  provisions  as  to  the  qualification 
of  jurors  in  the  counties  of  New  York,  Kings  and  Queens.  See- 
Code  Civ.  Pro.,  §§  1027,  1078,  1079-1125,  1126-1162. 

XIV.  ACTIONS  BY  STATE  WRIT. 

86.  What  are  the  State  writs? 

The  Code  enumerates  them  as  follows: 

The  writ  of  (1)  habeas  corpus  to  bring  up  a  person  to  testify  or 
to  answer;  (2)  the  writ  of  habeas  corpus  and  the  writ  of  ceriiorari 
to  inquire  into  the  cause  of  detention;  (3)  the  writ  of  mandamus; 
(4)  the  writ  of  prohibition;  (5)  the  writ  of  assessment  of  damages, 
which  is  substituted  for  the  writ  heretofore  known  as  the  writ  of 
ad  quod  damnum;  (6)  and  the  writ  of  certiorari,  to  review  the  de- 
termination of  an  inferior  tribunal,  which  may  be  called  the  writ 
of  review.  Code  Civ.  Pro.,  §  1994. 

a.     Habeas  Corpus  to  Testify. 

87.  What  are  the  general  provisions  of  the  Code  relating  to  the 
writ  of  habeas  corpus  to  testify? 

A  court  of  record,  other  than  a  Justices'  Court  of  a  city,  or  a 
judge  of  such  a  court,  or  a  justice  of  the  Supreme  Court,  has  power 
upon  the  application  of  a  party  to  an  action  or  special  proceeding, 
civil  or  criminal,  pending  therein,  to  issue  a  writ  of  habeas  corpus^ 
for  the  purpose  of  bringing  before  the  court  a  prisoner,  detained  in 
a  jail  or  prison  within  the  State,  to  testify  as  a  witness  in  the  action 
or  special  proceeding,  in  behalf  of  the  applicant.  Code  Civ.  Pro., 
§  2008. 

b.  Habeas  Corpus  and  Certiorari  to  Inquire  into  Cause  of  Detention. 

88.  What  are  the  general  Code  provisions  relating  to  the  issuing 
of  the  writs  of  habeas  corpus  and  ceriiorari,  to  inquire  into  the 
cause  of  detention  ? 

A  person  imprisoned  or  restrained  in  his  liberty,  within  the 
State,  for  any  cause,  or  upon  any  pretense,  is  entitled,  except  in  one 
of  the  cases  specified  in  the  next  section,  to  a  writ  of  habeis  corpus, 
or  a  writ  of  certiorari,  as  prescribed  in  this  article,  for  the  purpose 
of  inquiring  into  the  cause  of  the  imprisonment  or  restraint,  and. 
in  a  case  prescribed  by  law,  of  delivering  him  therefrom.  A  writ 


PLEADING  AND  PRACTICE  UNDER  NEW  YORK  CODE.      511 

of  habeas  corpus  may  be  issued  and  served  under  this  section,  on 
Sunday ;  but  it  cannot  be  made  returnable  on  that  day.  Code  Civ 
Pro.,  §  2015. 

A  person  is  not  entitled  to  either  of  the  writs  specified  in  the 
last  section,  in  either  of  the  following  cases : 

1.  Where  he  has  been  committed,  or  is  detained,  by  virtue  of  a 
mandate,  issued  by  a  court  or  a  judge  of  the  United  States,  in  a 
case  where  such  courts  or  judges  have  exclusive  jurisdiction  under 
the  laws  of  the  United  States,  or  have  acquired  exclusive  juris- 
diction by  the  commencement  of  legal  proceedings  in  such  a  court. 

2.  Where  he  has  been  committed,  or  is  detained,  by  virtue  of  the 
final  judgment  or  decree  of  a  competent  tribunal  of 'civil  or  crim- 
inal jurisdiction;  or  the  final  order  of  such  a  tribunal,  made  in  a 
special  proceeding,  instituted  for  any  cause,  except  to  punish  him 
for  a  contempt ;  or  by  virtue  of  an  execution  or  other  .process,  issued 
upon  such  a  judgment,  decree,  or  final  order.     Code  Civ.  Pro., 
§  2016. 

89.  What  discretion  is  allowed  in  granting    a    writ  of   habeas 
corpus  or  certiorari  ? 

A  court  or  a  judge,  authorized  to  grant  either  writ,  must  grant 
it  without  delay,  whenever  a  petition  therefor  is  presented,  as  pre- 
scribed in  the  foregoing  sections  of.  this  article,  unless  it  appears, 
from  the  petition  itself,  or  the  documents  annexed  thereto,  that  the 
petitioner  is  prohibited  by  law  from  prosecuting  the  writ.  For  a 
violation  of  this  section,  a  judge,  or,  if  the  application  was  made 
to  a  court,  each  member  of  the  court,  who  assents  to  the  violation, 
forfeits  to  the  prisoner  $1,000,  to  be  recovered  by  an  action  in  his 
name,  or  in  the  name  of  the  petitioner  to  his  use.  Code  Civ.  Pro., 
§  2020. 

90.  What  is  the  form  of  the  writs  of  habeas  corpus  and  cer- 
tiorari? 

The  writ  of  habeas  corpus,  issued  as  prescribed  in  this  article, 
must  be  substantially  in  the  following  form,  the  blanks  being  prop- 
erly filled  up : 

"  The  People  of  the  State  of  New  York, 
To  the  Sheriff  of,"  etc.  [or  "  to  A.  B."] 

"  We  command  you,  that  you  have  the  body  of  C.  B.,  by  you 
imprisoned  and  detained,  as  it  is  said,  together  with  the  time  and 
cause  of  such  imprisonment  and  detention,  by  whatsoever  name  the 
said  C.  D.  is  called  or  charged,  before ,"  ["  the  Su- 
preme Court,  at  a  Special  Term  or  term  of  the  Appellate  Division 
thereof,  to  be  held,"  or  "  F.  F.,  justice  of  the  Supreme  Court,"  or 

otherwise,  as  the  case  may  be]  "at on " 

[or  "  immediately  after  the  receipt  of  this  writ,"]  to  do  and  re- 
ceive what  shall  then  and  there  be  considered,  concerning  the  said 
C.  D.  And  have  vou  then  there  this  writ. 


512  QUESTIONS  AXD  ANSWERS. 

"  Witness ,  one  of  the  justices  "  [or  "  judges  "] 

"of   the  said  court,"    [or  "county  judge,"   or  otherwise,   as  the 

case  may  be,]  "  the day  of ,  in  the  year 

.' "     Code  Civ.  Pro.,  §  2021. 

The  writ  of  certiorari,  issued  as  prescribed  in  this  article,  must 
be  substantially  in  the  following  form,  the  blanks  being  properly 
filled  up : 

"  The  People  of  the  State  of  New  York, 
To  the  Sheriff  of,"  etc.  [or  "to  A.  B."] 

"  We  command  you,  that  you  certify  fully  and  at  large,  to 

,"  ["  the  Supreme  Court,  at  a  Special  Term  or  term  of 

the  Appellate  Division  thereof,  to  be  held,"  or  "  E.  F.,  justice  of 
the  Supreme  Court,"  or  otherwise,  as  the  case  may  be,]  "  at 
,  on ,"  [or  "  immediately  after  the  re- 
ceipt of  this  writ,"]  "the  day  and  cause  of  the  imprisonment  of 
C.  D.,  by  you  detained,  as  it  is  said,  by  whatsoever  name  the  said 
C.  D.  is  called  or  charged.  And  have  you  then  there  this  writ. 

"  Witness, ,  one  of  the  justices  "  [or  "  judges  "] 

"  of  the  said  court,"  [or  "  county  judge,"  or  otherwise,  as  the 

case  may  be,]  "  the day  of ,  in  the  year 

"  Code  Civ.  Pro.,  §§  2022. 

91.  When  may  a  writ  of  certiorari  issue  upon  application  for  a 
writ  of  habeas  corpus? 

Where  an  application  is  made  for  a  writ  of  habeas  corpus,  as 
prescribed  in  this  article,  and  it  appears  to  the  court  or  judge,  upon 
the  petition  and  the  documents  annexed  thereto,  that  the  cause 
or  offense,  for  which  the  party  is  imprisoned  or  detained,  is  not 
bailable,  a  writ  of  certiorari  may  be  granted,  instead  of  a  writ  of 
habeas  corpus,  as  if  the  application  had  been  made  for  the  former 
writ.  Code  Civ.  Pro.,  §  2041. 

c.     Mandamus. 

92.  What  are  the  general  provisions  of  the  Code  in  regard  to  a 
writ  of  mandamus? 

A  writ  of  mandamus  is  either  alternative  or  peremptory.  The 
alternative  writ  may  be  granted  upon  an  affidavit,  or  other  written 
proof,  showing  a  proper  case  therefor;  and  either  with  or  without 
previous  notice  of  the  application,  as  the  court  thinks  proper. 

Except  where  special  provision  therefor  is  otherwise  made  in 
this  article,  a  writ  of  mandamus  can  be  granted  only  at  Special 
Term  of  the  court  held  within  the  judicial  district,  embracing  the 
county,  wherein  an  issue  of  fact,  joined  upon  an  alternative  writ  of 
mandamus,  is  triable.  Code  Civ.  Pro.,  §§  2067,  2068. 
•  A  peremptory  writ  of  mandamus  may  be  issued,  in  the  first  in- 
stance, where  the  applicant's  right  to  the  mandamus  depends  only 
upon  questions  of  law,  and  notice  of  the  application  has  been  given 


PLEADING  AND  PRACTICE  UXDER  XEW  YORK  CODE.      513 

to  a  judge  of  the  court,  or  to  the  corporation,  board,  or  other  body, 
officer,  or  other  person,  to  which  or  to  whom  it  is  directed.  Code 
Civ.  Pro.,  §  2070. 

The  alternative  writ  of  mandamus  is  governed  by  chapter  6  of 
the  Code,  relating  to  a  complaint,  as  to  the  statement  of  facts, 
joinder  of  several  causes  of  action  and  demand  for  judgment.  The 
person  upon  whom  the  writ  is  served  may  either  make  a  return  or 
demur  to  it,  or  demur  to  any  separate  offense  alleged,  the  demurrer 
being  in  like  form  as  to  a  complaint,  and  make  a  return  to  the 
remainder.  Code  Civ.  Pro.,  §  2076. 

The  provisions  of  chapter  6  of  the  Code,  relating  to  the  form  and 
contents  of  an  answer,  apply  in  general  to  a  return,  and  each  com- 
plete statement  of  facts  assigning  a  cause  why  a  writ  ought  not  to 
be  obeyed  must  be  separately  stated  and  numbered  as  a  separate  de- 
fense. '  Code  Civ.  Pro.,  §  2077. 

Where  a  return  to  an  alternative  writ  of  mandamus  has  been 
filed,  fhe  attorney  for  the  defendant  making  it  must  serve,  upon  the 
attorney  for  the  people  or  the  relator,  a  notice  of  the  filing  thereof. 
Where  the  people  or  the  relator  demur  to  the  return,  or  to  a  part 
thereof,  a  copy  of  the  demurrer  must  be  served  upon  the  attorney 
for  the  defendant,  within  twenty  days  after  the  service  of  such  a 
notice.  Where  the  defendant  demurs  to  the  writ,  or  to  a  part 
thereof,  a  copy  of  the  demurrer  must  be  served  upon  the  attorney 
for  the  people  or  the  relator,  within  the  time  prescribed  by  law  for 
filing  it.  Code  Civ.  Pro.,  §  2081. 

Except  as  otherwise  expressly  prescribed  in  this  act,  the  pro- 
ceedings after  issue  is  joined,  upon  the  facts  or  upon  the  law,  are, 
in  all  respects,  the  same  as  in  an  action;  the  final  order  is  deemed 
a  final  judgment  and  may  be  entered  and  enforced,  with  respect  to 
such  parts  thereof  as  are  not  enforced  by  a  peremptory  mandamus, 
as  a  final  judgment  in  an  action.  Code  Civ.  Pro.,  §  2082. 

d.     Prohibition. 

93.  IVhat  are  the  general  provisions  of  the  Code  in  regard  to  a 
writ  of  prohibition? 

A  writ  of  prohibition  is  either  alternative  or  absolute.  The  alter- 
native writ  may  be  granted  upon  an  affidavit,  or  other  written 
proof,  showing  a  proper  case  therefor,  and  either  with  or  without 
previous  notice  of  the  application,  as  the  court  thinks  proper.  Code 
Civ.  Pro.,  §  2091.  Where  it  is  directed  to  a  judge  or  judges  of  the 
Supreme  Court  it  can  be  granted  only  by  the  Appellate  Division 
in  the  Judicial  Department  where  the  action  is  pending,  or, 
if  no  term  of  the  Appellate  Division  in  that  department  is  in 
session,  in  the  adjoining  department.  Code  Civ.  Pro.,  §  2093. 

Except  as  otherwise  specially  prescribed  by  law,  an  absolute  writ 
of  prohibition  cannot  be  issued,  until  an  alternative  writ  has  been 
issued  and  duly  served,  and  the  return  day  thereof  has  elapsed. 
The  alternative'  writ  must  be  directed  to  the  court  in  which,  or  to 

33 


514:  QUESTIONS  AND  ANSWERS. 

the  judge  before  whom,  and  also  to  the  party  in  whose  favor,  the 
proceedings  to  be  restrained  were  taken,  or  are  about  to  be  taken. 
It  must  command  the  court  or  judge,  and  also  the  party,  to  desist 
and  refrain  from  any  further  proceedings  in  the  action  or  special 
proceeding,  or  with  respect  to  the  particular  matter  or  thing  de- 
scribed therein,  as  the  case  may  be,  until  the  further  direction  of 
the  court  issuing  the  writ;  and  also  to  show  cause,  at  the  time 
when,  and  the  place  where,  the  writ  is  made  returnable,  why  they 
should  not  be  absolutely  restrained  from  any  further  proceedings  in 
that  action,  special  proceeding,  or  matter.  The  writ  need  not  con- 
tain any  statement  of  the  facts  or  legal  objections,  upon  which  the 
relator  founds  his  claim  to  relief.  Code  Civ.  Pro.,  §  2094. 

Where  the  alternative  writ  has  been  duly  served  upon  the  court 
or  judge,  and  upon  the  party,  the  relator  is  entitled  to  an  absolute 
writ,  unless  a  return  is  made  by  the  court  or  judge,  and  by  the 
party,  according  to  the  exigency  of  the  alternative  writ,  or  within 
such  further  time  as  may  be  granted  for  the  purpose.  The  return 
must  be  annexed  to  a  copy  of  the  writ;  and  it  must  be  either  de- 
livered in  open  court,  or  filed  in  the  office  of  the  clerk  of  the  county 
where  the  writ  is  returnable.  Where  the  party  makes  a  return,  the 
court  or  judge  must  also  make  a  return.  Code  Civ.  Pro.,  §  2096. 

Pleadings  are  not  allowed  upon  a  writ  of  prohibition.  Where  an 
alternative  writ  has  been  issued,  the  cause  may  be  disposed  of  with- 
out further  notice,  at  the  term  at  which  the  writ  is  returnable.  If 
it  is  not  then  disposed  of,  it  may  be  brought  to  a  hearing,  upon 
notice,  at  a  subsequent  term.  The  relator  may  controvert,  by  affi- 
davit, any  allegation  of  new  matter  contained  in  the  return.  The 
court  may  direct  the  trial  of  any  question  of  fact  by  a  jury,  in  like 
manner  and  with  like  effect  as  where  an  order  is  made  for  the  trial, 
by  a  jury,  of  issues  of  fact,  joined  in  an  action  triable  by  the  court. 
Where  such  a  direction  is  given,  the  proceedings  must  be  the  same 
as  upon  the  trial  of  issues  so  joined  in  an  action.  Code  Civ.  Pro., 
§  2099. 

e.     Assessment  of  Damages. 

94.  What  are  the  general  provisions  of  the  Code  relating  to  the 
writ  of  assessment  of  damages? 

Whenever  the  governor  of  the  State  is  authorized  by  law  to  take 
possession  of  any  real  property  within  the  State,  for  the  u=e  of 
the  people  of  the  State,  and  he  cannot  agree  with  the  owner  or 
owners  thereof  for  its  purchase,  he  may  cause  application  to  be 
made  to  the  Supreme  Court,  at  a  Special  Term  thereof,  for  a  writ 
of  assessment  of  damages,  which  must  be  granted  accordingly. 
Code  Civ.  Pro.,  §  2104. 

The  writ  must  describe  the  real  property  to  be  taken,  with^  the- 
like  certainty  as  is  required  in  a  complaint  in  an  action  of  eject- 
ment. It  must  command  the  sheriff,  to  whom  it  is  directed,  to  in- 
quire, by  the  oaths  of  twelve  men  of  his  county,  qualified  to  act  as 
trial  jurors  in  a  court  of  record,  whether  the  owner  or  owners  of 


PLEADING  AND  PRACTICE  UNDER  N"EW  YORK  CODE.      515 

the  real  property,  or  any  of  them,  will  sustain  any  damages  by  the 
taking  thereof,  for  the  use  of  the  people  of  the  State ;  and,  if  so,  the 
amount  thereof ;  and  that  he  return  the  writ  to  the  Supreme  Court, 
without  delay,  with  the  finding  of  the  jury  thereupon.  Code  Civ 
Pro.,  §  2107. 

.f.      Certiorari  to  Eeview. 

95.  What  are  the  general  provisions  of  the  Code  relating  to  the 
writ  of  certiorari,  to  review  the  determination  of  an  inferior 
tribunal? 

The  writ  of  certiorari  regulated  in  this  article  is  issued  to  re- 
view the  determination  of  a  body  or  officer.  It  can  be  issued  in 
one  of  the  following  cases  only,  except  where  issued  by  an  appel- 
late court  to  supply  a  diminution  or  other  defect  of  the  record. 

1.  Where  the  right  to  the  writ  is  expressly  conferred,  or  the  issue 
thereof  is  expressly  authorized,  by  a  statute. 

2.  Where  the  writ  may  be  issued  at  common  law,  by  a  court  of 
general  jurisdiction,  and  the  right  to  the  writ,  or  the  power  of  the 
court  to  issue  it,  is  not  expressly  taken  away  by  a  statute.     Code 
Civ.  Pro.,  §§  2120,  2124. 

A  writ  of  certiorari  cannot  be  issued,  to  review  a  determination 
made,  after  this  article  takes  effect,  in  a  civil  action  or  special  pro- 
ceeding, by  a  court  of  record,  or  a  judge  of  a  court  of  record.  Code 
Civ.  Pro.,  §  2121. 

Except  as  otherwise  expressly  prescribed  by  statute,  a  writ  of 
certiorari  cannot  be  issued,  in  either  of  the  following  cases: 

1.  To  review  a  determination,  which  does  not  finally  determine 
the  rights  of  the  parties,  with  respect  to  the  matter  to  be  reviewed. 

2.  Where  the  determination  can  be  adequately  reviewed,  by  an 
appeal  to  a  court,  or  to  some  other  body  or  officer. 

3.  Where  the  body  or  officer  making  the  determination  is  ex- 
pressly authorized,  by  statute,  to  rehear  the  matter,  upon  the  re- 
lator's  application,  unless  the  determination  to  be  reviewed   was 
made  upon  a  rehearing,  or  the  time  within  which  the  relator  can 
procure  a  rehearing  has  elapsed.     Code  Civ.  Pro.,  §  2122. 

A  writ  of  certiorari  can  be  issued  only  out  of  the  Supreme  Court, 
excepting  a  case  where  another  court  is  expressly  authorized  by 
statute  to  issue  it.  Code  Civ.  Pro.,  §  2123. 

The  questions  involving  the  merits,  to  be  determined  by  the  court 
upon  the  hearing,  are  the  following,  only : 

1.  Whether  the  body  or  officer  had  jurisdiction  of  the  subject- 
matter  of  the  determination  under  review. 

2.  Whether  the  authority  conferred  upon  the  body  or  officer,  in 
relation  to  that  subject-matter,  has  been  pursued  in  the  mode  re- 
quired by  law,  in  order  to  authorize  it  or  him  to  make  the  deter- 
mination. 

3.  Whether,  in  making  the  determination,  any  rule  of  law.  affect- 
ing the  rights  of  the  parties  thereto,  has  been  violated,  to  the  pre- 
judice of  the  relator. 


516  QUESTIONS  AND  ANSWERS. 

4.  Whether  there  was  any  competent  proof  of  all  the  facts,  neces- 
sary to  be  proved,  in  order  to  authorize  the  making  of  the  deter- 
mination. 

5.  If  there  was  such  proof,  whether  there  was,  upon  all  the  evi- 
dence, such  a  preponderance  of  proof,  against  the  existence  of  any 
of  those  facts,  that  the  verdict  of  a  jury,  affirming  the  existence 
thereof,  rendered  in  an  action  in  the  Supreme  Court,  triable  by  a 
jury,  would  be  set  aside  by  the  court,  as  against  the  weight  of 
evidence.     Code  Civ.  Pro.,  §  2140. 

XV.  ARBITRATION. 

96.  What  is  an  arbitration? 

The  investigation  and  determination  of  a  matter  or  matters  of 
difference  between  contending  parties  by  one  or  more  unofficial 
persons,  chosen  by  the  parties,  and  called  arbitrators  or  referees. 
Code  Civ.  Pro.,  §§  2365-2386. 

97.  What,  under  the  Code,  may  be  submitted  to  arbitration? 
All  civil  controversies,  which  might  be  the  subject  of  an  action, 

except  (1)  where  one  of  the  parties  to  the  controversy  is  an  infant 
or  a  person  incompetent  to  manage  his  own  affairs;  (2)  or  where 
the  controversy  arises  respecting  a  claim  to  an  estate  in  real  prop- 
erty, in  fee  or  for  life ;  but  the  restriction  in  relation  to  real  prop- 
erty does  not  prevent  the  submission  of  a  claim  to  an  estate  for 
years,  or  other  interest  for  a  term  of  years,  or  for  one  year  or  less, 
in  realty,  or  of  a  controversy  respecting  the  partition  of  real  prop- 
erty between  joint  tenants  or  tenants  in  common;  or  of  a  contro- 
versy respecting  the  boundaries  of  lands  or  the  admeasurement  of 
dower.  The  submission  must  be  made  by  an  instrument  in  writing 
duly  acknowledged  or  proved.  It  may  provide  that  a  judgment 
of  a  court  of  record  therein  specified  may  be  entered  upon  the 
award.  Code  Civ.  Pro.,  §§  2365-2366. 

The  award  or  decision  of  the  arbitrators  may  be  made  a  judgment 
of  the  specified  court,  upon  application  of  the  attorney  for  the 
successful  party;  but  no  award  will  be  allowed  to  be  valid  or  bind- 
ing which  was  procured  by  fraud  or  undue  influence,  or  where 
the  arbitrators  showed  evident  partiality,  were  guilty  of  miscon- 
duct in  excluding  material  evidence  or  in  any  other  respect,  or 
where  the  arbitrators  exceeded  their  powers  or  imperfectly  executed 
them.  Code  Civ.  Pro.,  §§  2373,  2374. 

XVI.  SUPPLEMENTARY  PEOCEEDINGS. 

98.  What  are  the  necessary  allegations  in  an  affidavit  to  obtain 
an  order  to  examine  a  judgment  debtor  in  supplementary  proceed- 
ings? 

1.  That  the  plaintiff  recovered  a  judgment  for  more  than  $25, 
exclusive  of  costs,  against  the  defendant,  and  the  date  thereof. 


PLEADING  AND  PRACTICE  UNDER  XEW  YORK  CODE.      51T 

2.  That  the  judgment-roll  was  filed  in  the  county  clerk's  office 
on  a  certain  day. 

3.  That  execution  was  issued  from  a  court  of  record  to  the  sheriff 
of  the  county  where  the  defendant  resides,  or  where  at  the  time  of 
the  beginning  of  the  proceedings  he  had  a  regular  place  for  the 
transaction  of  business  in  person,  or  if  the  defendant  is  not  at  the 
time  of  the  execution  a  resident  of  the  State,  to  the  sheriff  of  the 
county  where  the  judgment  or  transcript  is  filed,  and  was  returned 
wholly  or  partly  unsatisfied  within  ten  years. 

4.  That  the  judgment  remains  wholly  or  partly  unpaid. 

5.  That  no  previous  application  for  an  order  for  the  examination 
of  the  judgment  debtor  has  been  made.     Code  Civ.  Pro.,  §§  2435, 
2458;  Genl.  Eules  Prac.  25. 

To  obtain  an  order  for  examination  of  a  judgment  debtor,  in 
supplementary  proceedings,  it  is  necessary  that  the '  action  from 
which  the  judgment  results  should  have  been  begun  by  personal 
service  of  the  summons  on,  or  appearance  of,  the  judgment  debtor, 
or  by  substituted  service  in  accordance  with  section  436  of  the  Code. 
Code  Civ.  Pro.,  §  2458.  At  any  time  after  the  issuing  of  execution 
against  property  under  section  2458  of  the  Code,  and  before  the 
return  thereof,  the  judgment  creditor,  upon  proof  by  affidavit  that 
the  judgment  debtor  has  property  which  he  unjustly  refuses  to 
apply  to  the  satisfaction  of  the  judgment,  may  obtain  an  order,  re- 
quiring the  judgment  debtor  to  attend  for  examination.  Code 
Civ.  Pro.,  §  2436. 


XVII.  LIMITATION  OF  ACTIONS. 
99.  What  are  Statutes  of  Limitation? 

Statutes  of  Limitation  are  statutes  passed  defining  the  periods 
within  which  claims  must  be  placed  in  suit.  2  Bouvier's  Law  Diet. 
55.  Such  statutes  act  upon  the  remedy  by  depriving  the  person  to 
whom  the  obligation  is  due  of  the  right  of  suing  after  a  certain 
time.  2  Bouvier's  Law  Diet.  242. 

100.  Must  the  Statute  of  Limitations  be  pleaded  to  be  avail- 
able? 

Yes.  The  objection,  that  the  action  was  not  commenced  within 
the  time  limited,  can  be  taken  only  by  answer.  The  correspond- 
ing objection  to  a  defense  or  counterclaim  can  be  taken  only  by 
reply,  except  where  a  reply  is  not  required,  in  order  to  enable  the 
plaintiff  to  raise  an  issue  of  fact,  upon  an  allegation  contained  in 
the  answer.  Code  Civ.  Pro.,  §  413. 


518  QUESTIONS  AND  ANSWERS. 

101.  What  are  the  time  limitations  for  bringing  different  actions 
under  the  Code? 

1.  Actions  for  the  recovery  of  real  property. 

(a)  By  the  people. 

"  The  people  of  the  State  will  not  sue  a  person  for  or  with 
respect  to  real  property,  or  the  issues  or  profits  thereof,  by  reason 
of  the  right  or  title  of  the  people  to  the  same,  unless  either : 

1.  The  cause  of  action  accrued  within  forty  years  before  the 
action  is  commenced;  or, 

2.  The  people,  or  those  from  whom  they  claim,  have  received 
the  rents  and  profits  of  the  real  property  or  of  some  part  thereof, 
within  the  same  period  of  time"  (Code  Civ.  Pro.,  §  362),  except  in 
the  case  of  an  action  to  recover  real  property  after  the  judicial 
annulment  of  lettefs  patent.     The  period  is  then  twenty  years. 
Code  Civ.  Pro.,  §  364. 

(b)  By  individuals. 

An  action  to  recover  real  property,  or  the  possession  thereof, 
cannot  be  maintained  by  a  party,  other  than  the  people,  unless  the 
plaintiff,  his  ancestor,  predecessor,  or  grantor,  was  seized  or  pos- 
sessed of  the  premises  in  question,  within  twenty  years  before  the 
commencement  of  the  action.  Code  Civ.  Pro.,  §  365. 

2.  Actions  other  than  for  the  recovery  of  real  property. 

"Within  twenty  years. 

1.  Judgments  of  a  court  of  record  are  conclusively  presumed  to 
be  satisfied  after  twenty  years  except  as  against  a  person  who 
within  twenty  years  from  that  time  has  made  a  payment,  or  written 
and  signed  an  acknowledgment  of  indebtedness  as  to  some  part,  of 
the  amount  recovered;  or  some  person  claiming  through  such  a 
person.     Such  a  judgment  may  be  made  a  lien  upon  land  of  the 
judgment  debtor  for  ten  years,  if  it  is  docketed  in  the  county  where 
the  land  is  situated.     Code  Civ.  Pro.,  §§  376,  1251. 

2.  An  action  to  redeem  from  a  mortgage  may  be  maintained  by 
the  mortgagor  or  person  claiming  under  him  any  time  within 
twenty  years  after  the  breach  of  a  condition  or  nonfulfillment  of  a 
covenant  contained  in  the  mortgage.     Code  Civ.  Pro.,  §  379. 

3.  An  action  upon  a  sealed  instrument  must  be  brought  within 
twenty  years. 

But  where  the  action  is  brought  for  breach  of  a  covenant  of 
seizin,  or  against  incumbrances,  the  cause  of  action  is,  for  the  pur- 
poses of  this  section  only,  deemed  to  have  accrued  upon  an  eviction, 
and  not  before.  Code  Civ.  Pro.,  §  381. 

The  following  actions  must  be  commenced  within  the  following 
periods  after  the  cause  of  action  has  accrued. 

Within  six  years. 

1.  An  action  upon  a  contract,  obligation,  or  liability,  express  or 
implied,  except  a  judgment  or  sealed  instrument. 


PLEADING  AND  PRACTICE  UNDER  XEW  YORK  CODE.      519 

2.  An  action  to  recover  upon  a  liability  created  by  statute,  ex- 
cept a  penalty  or  forfeiture. 

3.  An  action  to  recover  damages  for  an  injury  to  property  or  a 
personal  injury,  except  in  a  case  where  a  different  period  is  pro- 
vided by  the  Code. 

4.  An  action  to  recover  a  chattel. 

5.  An  action  to  procure  a  judgment  other  than  for  a  sum  of 
money,  on  the  ground  of  fraud,  in  a  case  where  the  Court  of  Chan- 
cery formerly  had  jurisdiction.     The  cause  of  action  in  such  a 
case  is  not  deemed  to  have  accrued  until  the  discovery,  by  the  plain- 
tiff or  the  person  under  whom  he  claims,  of  the  facts  constituting 
the  fraud. 

6.  An  action  to  establish  a  will.     Where  the  will  has  been  lost, 
concealed,  or  destroyed,  the  cause  of  action  is  not  deemed  to  have 
accrued  until  the  discovery,  by  the  plaintiff  or  the  person  under 
whom  he  claims,  of  the  facts  upon  which  its  validity  depends. 

7.  An  action  upon  a  judgment  or  decree  rendered  in  a  court 
not  of  record,  except  where  a  transcript  shall  be  filed  pursuant  to 
section  3017,  and  also,  except  a  decree  heretofore  rendered  in  a 
Surrogate's  Court  of  the  State.     The  cause  of  action  is  deemed  to 
have  accrued  when  final  judgment  was  rendered.     Code  Civ.  Pro.. 
§382. 

Within  three  years. 

1.  An  action  against  a  sheriff,  coroner,  constable,  or  other  officer 
for  nonpayment  of  money  collected  upon  execution. 

2.  An  action  against  a  constable,  upon  any  other  liability  in- 
curred by  him,  by  doing  an  act  in  his  official  capacity  or  by  the 
omission  of  an  official  duty  (except  an  escape). 

3.  An  action  upon  a  statute  for  a  penalty  or  forfeiture,  where 
the  action  is  given  to  the  person  aggrieved  or  to  that  person  and  the 
people  of  the  State,  except  where  the  statute  imposing  it  provides 
a  different  limitation. 

4.  An  action  against  an  executor,  administrator,  or  receiver,  or 
against  the  trustee  of  an  insolvent  debtor,  appointed  as  prescribed 
by  law  in  a  special  proceeding  instituted  in  a  court  or  before  a 
judge,  brought  to  recover  a  chattel  or  damages  for  taking,  detain- 
ing, or  injuring  personal  property  by  the  defendant  or  the  person 
whom  he  represents. 

5.  An  action  to  recover  damages  for  a  personal  injury  resulting 
from  negligence.     Code  Civ.  Pro.,  §  383. 

Within  two  years. 

1.  An  action  to  recover  damages  for  libel,  slander,  assault,  bat- 
tery, seduction,  criminal  conversation,  false  imprisonment,  or  ma- 
licious prosecution. 

2.  An  action  upon  a  statute  for  a  forfeiture  or  penalty  to  the 
people  of  the  State.     Code  Civ.  Pro.,  §  384. 


520  QUESTIONS  AND  ANSWERS. 

Within  one  year. 

1.  An  action  against  a  sheriff  or  coroner  upon  a  liability  in- 
curred by  him  by  doing  an  act  in  his  official  capacity  or  by  the 
omission  of  an  official  duty,  except  the  nonpayment  of  money  col- 
lected upon  an  execution. 

2.  An  action  against  any  other  officer  for  the  escape  of  a  prisoner, 
arrested  or  imprisoned  by  virtue  of  a  civil  mandate.     Code  Civ. 
Pro.,  §  385. 

A  cause  of  action  is  deemed  to  have  accrued  on  a  current  account 
from  the  time  of  the  last  item  proved  in  the  account,  on  either  side. 
Code  Civ.  Pro.,  §  386. 

An  action  upon  a  statute  for  the  recovery  of  a  penalty  or  for- 
feiture given  wholly  or  partly  to  any  person  who  will  sue  upon  the 
same,  must  be  begun  within  one  year  after  the  commission  of  the 
offense;  but  if  the  action  is  not  commenced  within  the  year  by  a 
private  person,  the  attorney-general  or  the  district  attorney  of  the 
county  where  the  offense  was  committed,  may  prosecute  the  claim 
any  time  within  two  years  thereafter  in  the  name  of  the  people. 
Such  an  action  as  the  foregoing  is  called  a  qui  tarn  action.  Code 
Civ.  Pro.,  §  387. 

All  actions  not  otherwise  provided  for  must  be  commenced  within 
ten  years  after  the  cause  of  action  accrues.  Code  Civ.  Pro.,  §  388. 

102.  What  disabilities  are  excluded  from  the  time  within  which 
to  commence  actions  other  than  for  the  recovery  of  real  property? 

If  a  person,  entitled  to  maintain  an  action,  except  for  a  penalty 
or  forfeiture,  or  against  a  sheriff  or  other  officer  for  an  escape,  is, 
at  the  time  when  the  cause  of  action  accrues,  either: 

1.  Within  the  age  of  twenty-one  years;  or, 

2.  Insane;  or, 

3.  Imprisoned  on  a  criminal  charge,  or  in  execution  upon  con- 
viction of  a  criminal  offense,  for  a  term  less  than  for  life; 

The  time  of  such  a  disability  is  not  a  part  of  the  time  limited 
for  commencing  the  action ;  except  that  the  time  so  limited  cannot 
be  extended  more  than  five  years  by  any  such  disability,  except  in- 
fancy; or,  in  any  case,  more  than  one  year  after  the  disability 
ceases.  Code  Civ.  Pro.,  §  396. 

If,  when  a  cause  of  action  accrues  against  a  person,  he  is  without 
the  State,  the  action  may  be  commenced  within  the  time  limited 
therefor,  after  his  return  into  the  State.  If.  after  a  cause  of  action 
has  accrued  against  a  person,  he  departs  from  the  State,  and  re- 
mains continuously  absent  therefrom  for  the  space  of  one  year  or 
more,  or  if,  without  the  knowledge  of  the  person  enti- 
tled to  maintain  the  action,  he  resides  within  the  State  under  a 
false  name,  the  time  of  his  absence  or  of  such  residence  within  the 
.  State  under  such  false  name  is  not  a  part  of  the  time  limited  for 
the  commencement  of  the  action. 

This  provision  does  not  apply,  however,  in  a  case  where  the 


PLEADING  AND  PRACTICE  UNDER  NEW  YORK  CODE.      521 

defendant  has  designated  a  person  upon  whom  to  serve  the  sum- 
mons.    Code  Civ.  Pro.,  §  401. 

It  is  necessary  that  a  person  should  become  a  nonresident  to 
prevent  the  statute's  continuing  to  run,  and  he  must  remain  such 
for  the  entire  year.  First  Xat,  Bk.  v.  Bissell,  24  St.  Rep.  909. 

103.  ^Yhat  disabilities  are  excluded  from  the  time  within  which 
to  commence  an  action  for  the  recovery  of  real  property? 

1  f  a  person,  who  might  maintain  an  action  to  recover  real  prop- 
erty, or  the  possession  thereof,  or  make  an  entry,  or  interpose  a  de- 
fense or  counterclaim,  founded  on  the  title  to  real  property,  or  to 
rents  or  services  out  of  the  same,  is,  when  his  title  first  descends, 
or  his  cause  of  action  or  right  of  entry  first  accrues,  either: 

1.  Within  the  age  of  twenty-one  years;  or, 

2.  Insane;  or, 

3.  Imprisoned  on  a  criminal  charge,  or  in  execution  upon  con- 
viction of  a  criminal  offense,  for  a  term  less  than  for  life ; 

The  time  of  such  a  disability  is  not  a  part  of  the  time,  limited 
in  this  title,  for  commencing  the  action,  or  making  the  entry,  or 
interposing  the  defense  or  counterclaim;  except  that  the  time  so 
limited  cannot  be  extended  more  than  ten  years,  after  the  disability 
ceases,  or  after  the  death  of  the  person  so  disabled.  Code  Civ.  Pro., 
§  375. 

But  a  person  cannot  avail  himself  of  a  disability,  unless  it  existed 
when  his  right  of  action  or  of  entry  accrued.  Code  Civ.  Pro..  §  408. 

The  provision  that  the  time  cannot  be  extended  more  than  ten 
years  after  the  disability  ceases,  does  not  operate  so  as  to  limit 
the  right  of  action  to  less  than  twenty  years.  If  an  infant  was  one 
day  old  when  the  right  of  action  arose  lie  would  have  ten  years  after 
he  arrived  at  twenty-one,  or  thirty-one  years  in  all.  If  he  was 
twenty  years  old,  and  should  be  allowed  but  ten  years  after  reaching 
twenty-one,  he  would  have  but  eleven  years  in  all.  which  would 
be  contrary  to  the  statute  allowing  twenty  years,  so  he  would  have 
twenty  years  after  reaching  the  age  of  twenty-one;  or  twenty-one 
years  in  all,  within  which  to  bring  his  action.  Howell  v.  Leavitt, 
95  X.  Y.  617. 

104.  ~\Yhat  constitutes  adverse  possession  of  real  estate? 

1.  Where  it  was  entered  upon  under  claim  of  title  based  on  a 
written  instrument. 

For  the  purpose  of  constituting  an  adverse  possession,  by  a^  per- 
son claiming  a  title  founded  upon  a  written  instrument,  or  a  judg- 
ment or  decree,  land  is  deemed  to  have  been  possessed  and  oc- 
cupied in  either  of  the  following  cases : 

a.  Where  it  has  been  usuallv  cultivated  or  improved. 

b.  Where  it  has  been  protected  by  a  substantial  inelosure. 

c  Where,  although  not  inclosed,  it  has  boen  used  for  the  sup- 
ply of  fuel,'  or  of  fencing  timber,  either  for  the  purposes  of  hus- 
bandry, or  for  the  ordinary  use  of  the  occupant. 


522  QUESTIONS  AND  ANSWERS. 

Where  a  known  farm  or  a  single  lot  has  been  partly  improved, 
the  portion  of  the  farm  or  lot  that  has  been  left  not  cleared,  or  not 
inclosed,  according  to  the  usual  course  and  custom  of  the  adjoining 
country,  is  deemed  to  have  been  occupied  for  the  same  length  of 
tiine,  as  the  part  improved  and  cultivated.  Code  Civ.  Pro.,  §§  369, 
370. 

2.  Where  held  under  claim  of  title  not  written. 

Where  there  has  been  an  actual  continued  occupation  of  prem- 
ises, under  a  claim  of  title,  exclusive  of  any  other  right,  but  not 
founded  upon  a  written  instrument,  or  a  judgment  or  decree,  the 
premises  so  actually  occupied,  and  no  others,  are  deemed  to  have 
been  held  adversely.  Code  Civ.  Pro.,  §  371. 

For  the  purpose  of  constituting  an  adverse  possession,  by  a  per- 
son claiming  title,  not  founded  upon  a  written  instrument,  or  a 
judgment  or  decree,  land  is  deemed  to  have  been  possessed  and  oc- 
cupied in  either  of  the  following  cases,  and  no  others. 

a.  Where  it  has  been  protected  by  a  substantial  inclosure. 

b.  Where  it  has  been  usually  cultivated  or  improved.    Code  Civ. 
Pro.,  §  272. 

XVIII.     EXECUTIONS. 

105.  How  many  kinds  of  executions  are  there  f 

There  are  four  kinds  of  execution,  as  follows : 

1.  Against  property. 

2.  Against  the  person. 

3.  For  the  delivery  of  the  possession  of  real  property  with  or 
•without  damages  for  withholding  the  same. 

4.  For  the  delivery  of  the  possession  of  a  chattel,  with  or  with- 
out damages  for  the  taking  or  detention  thereof. 

An  execution  is  the  process  of  the  court,  from  which  it  is  issued. 
Code  Civ.  Pro.,  §  1364. 

106.  To  what  counties  may  executions  issue? 

An  execution  against  property  can  be  issued  only  to  a  county,  in 
the  clerk's  office  of  which  the  judgment  is  docketed.  An  execution 
against  the  person  may  be  issued  to  any  county.  An  execution  for 
the  delivery  of  the  possession  of  real  property,  must  be  issued  to  the 
county  where  the  property,  or  a  part  thereof,  is  situated.  An 
execution  for  the  delivery  of  the  possession  of  a  chattel,  may  be 
issued  to  any  county  where  the  chattel  is  found ;  or  to  the  sheriff  of 
the  county  where  the  judgment-roll  is  filed.  Executions,  upon  the 
same  judgment,  may  be  issued  at  the  same  ti*me,  to  two  or  more 
different  counties.  Code  Civ.  Pro.,  §  1365. 

107.  What  are  the  general  requisites  of  an  execution? 

An  execution  must  intelligibly  describe  the  judgment,  stating  the 
names  of  the  parties  in  whose  favor,  and  against  whom,  the  time 
when,  and  the  court  in  which,  the  judgment  was  rendered;  and,  if 


PLEADING  AND  PRACTICE  UNDER  NEW  YORK  CODE.      523 

it  was  rendered  in  the  Supreme  Court,  the  county  in  which  the 
judgment-roll  is  filed.  It  must  require  the  sheriff  to  return  it  to 
the  proper  clerk,  within  sixty  days  after  the  receipt  thereof.  It 
must  be  made  returnable  to  the  clerk,  with  whom  the  judgment-roil 
is  filed,  except  where  it  is  issued  out  of  another  court  upon  the 
filing  of  a  transcript,  in  which  case  the  execution  must  be  return 
able  to  the  clerk  with  whom  the  transcript  is  filed.  Code  Civ.  Pro. 
§§  1366,  1367. 

108.  What  is  required  by  an  execution  against  property? 

It  must  substantially  require  the  sheriff  to  satisfy  the  judgment, 
out  of  the  personal  property  of  the  judgment  debtor;  and  if  suffi- 
cient personal  property  cannot  be  found,  out  of  the  real  property,, 
belonging  to  him,  at  the  time  when  the  judgment  was  docketed  in 
the  clerk's  office  of  the  county,  or  at  any  time  thereafter.  Code 
Civ.  Pro.,  §  1369. 

109.  What  is  required  by  an  execution  against  the  person? 

An  execution  against  the  person  must  substantially  require  the 
sheriff  to  arrest  the  judgment  debtor,  and  commit  him  to  the  jail 
of  the  county,  until  he  pays  the  judgment,  or  is  discharged  accord- 
ing to  law.  Except  where  it  may  be  issued,  without  the  previous 
issuing  and  return  of  an  execution  against  property,  it  must  recite 
the  issuing  and  return  of  such  an  execution,  specifying  the  county 
to  which  it  was  issued.  Code  Civ.  Pro.,  §  1372. 

110.  When  may  an  execution  issue  of  course? 

The  party  recovering  a  final  judgment,  or  his  assignee,  or  his 
personal  representatives  in  case  of  his  death  may  have  execution 
thereupon,  of  course,  at  any  time  within  five  years  after  the  entry 
of  the  judgment.  Code  Civ.  Pro.,  §§  1375,  1376. 

After  the  lapse  of  five  years  from  the  entry  of  a  final  judgment, 
execution  can  be  issued  thereupon,  in  one  of  the  following  cases 
only: 

1.  Where  an  execution  was  issued  thereupon,  within  five  years 
after  the  entry  of  the  judgment,  and  has  been  returned  wholly  or 
partly  unsatisfied  or  unexecuted. 

2.  'Where  an  order  is  made  by  the  court,  granting  leave  to  issue 
the  execution.     Code  Civ.  Pro..  §  1377. 

Where  a  judgment  debtor  dies  after  judgment,  execution  rnny, 
speaking  generally,  be  issued  upon  leave  of  court,  after  the  expira- 
tion of 'one  year  from  the  appointment  of  hi?  personal  representa- 
tives again?t  any  property  on  which  the  judgment  is  a  lien.  Execu- 
tion against  real  property  subject  to  the  judgment  lien  cannot  be 
issued  for  three  years  after  the  appointment  of  such  personal  repre- 
sentatives. Code  Civ.  Pro.,  §  1380. 


524  QUESTIONS  AND  ANSWERS. 

111.  Where  and  how  is  a  sale  of  property  on  execution  con- 
ducted? 

A  sale  of  real  or  personal  property,  by  virtue  of  an  execution,  or 
pursuant  to  the  directions  contained  in  a  judgment  or  order,  must 
be  made  at  public  auction,  between  the  hour  of  nine  o'clock  in  the 
morning  and  sunset.  Code  Civ.  Pro.,  §  1384. 

XIX.  APPEALS. 
a.      Generally. 

112.  When  may  a  party  appeal? 

A  party  aggrieved  may  appeal,  in  a  case  prescribed  in  the  Code, 
except  where  the  judgment  or  order,  of  which  he  complains,  was 
rendered  or  made  upon  his  default.  Code  Civ.  Pro.,  §  1294. 

113.  How  is  an  appeal  taken? 

An  appeal  must  be  taken,  by  serving,  upon  the  attorney  for  the 
adverse  party,  and  upon  the  clerk,  with  whom  the  judgment  or 
order  appealed  from  is  entered,  by  filing  in  his  office  a  written 
notice  to  the  effect  that  the  appellant  appeals  from  the  judgment  or 
order,  or  from  a  specified  part  thereof.  Code  Civ.  Pro.,  §  1300. 

114.  In  what  cases  may  the  amount  of  the  security,  upon  ap- 
peal, be  limited  or  dispensed  with? 

Wliere  an  appeal  is  taken  to  the  Court  of  Appeals,  or  the  Ap- 
pellate Division,  the  court  in  or  from  which  an  appeal  is  taken  may 
order,  in  its  discretion  and  upon  notice  to  the  respondent,  that  the 
becurity  required  to  stay  execution  be  dispensed  with  or  limited  in 
the  following  cases: 

1.  Where  the  appellant  is  an  executor,  administrator,  trustee, 
or  other  person  acting  in  another's  right,  security  may  be  dis- 
pensed with  or  limited,  in  the  discretion  of  the  court. 

2.  The  aggregate  sum,  in  which  one  or  more  undertakings  are 
required  to  be  given,  may  be  limited  to  not  less  than  $50,000, 
where  it  would  otherwise  exceed  that  sum. 

Where  the  appeal  is  from  an  inferior  court  to  the  Supreme  Court 
or  from  a  determination  in  a  special  proceeding,  the  court  to 
which  an  appeal  is  taken  may  exercise  the  same  power.  Code  Civ. 
Pro.,  §  1312. 

115.  In  what  cases  is  security  upon  appeal  unnecessary? 

Upon  an  appeal,  taken  by  the  people  of  the  State,  or  by  a  State 
"'r.cer.  or  board  of  State  officers,  or  a  board  of  supervisors  of  a 
county,  the  service  of  the  notice  of  appeal  perfects  the  appeal,  and 
ptays  the  execution  of  the  judgment  or  order  appealed  from,  with- 
out an  undertaking,  or  other  security.  Code  Civ.  Pro.,  ^  1313. 

So  also  in  the  case  of  an  appeal  by  a  domestic  municipal  corpora- 


PLEADING  AND  PRACTICE  UNDER  NEW  YORK  CODE.      525 

tion,  except  that  a  court  may,  where  the  appeal  is  to  the  Supreme 
Court,  the  Appellate  Division,  or  the  Court  of  Appeals,  in  its  dis- 
cretion require  security  to  be  given.  Code  Civ.  Pro.,  §  131-4. 

b.     To  the  Court  of  Appeals. 

116.  In  what  cases  may  an  appeal  be  iaken   to  the  court  of 

Appeals? 

An  appeal  may  be  taken  to  the  Court  of  Appeals,  in  a  case  where 
that  court  has  jurisdiction,  as  prescribed  in  sections  190  and  191 
of  the  Code.  Code  Civ.  Pro.,  §  1324. 

Those  sections  provide  as  follows: 

§  190.  The  Court  of  Appeals  has  exclusive  jurisdiction  to  re- 
view upon  appeal  every  actual  determination  made  prior  to  the 
last  day  of  December,  eighteen  hundred  and  ninety-five,  at  a  Gen- 
eral Term  of  the  Supreme  Court,  or  by  either  of  the  Superior  City 
Courts,  as  then  constituted,  in  all  cases  in  which,  under  the  pro- 
visions of  law  existing  on  said  day,  appeals  might  be  taken  to  the 
Court  of  Appeals.  From  and  after  the  last  day  of  December, 
eighteen  hundred  and  ninety-five,  the  jurisdiction  of  the  Court  of 
Appeals  shall,  in  civil  actions  and  proceedings,  be  confined  to  the 
review  upon  appeal  of  the  actual  determinations  made  by  the  Ap- 
pellate Division  of  the  Supreme  Court  in  either  of  the  following 
cases,  and  no  others: 

1.  Appeals  may  be  taken  as  of  right  to  said  court,  from  judg- 
ments or  orders  finally  determining  actions  or  special  proceedings, 
and  from  orders  granting  new  trials  on  exceptions,  where  the  ap- 
pellants stipulate  that  upon  affirmance,  judgment  absolute  shall  be 
rendered  against  them. 

2.  Appeals  may  also  be  taken  from  determinations  of  the  Appel- 
late Division  of  the  Supreme  Court,  in  any  department  where  the 
Appellate  Division  allows  the  same,  and  certifies  that  one  or  more 
questions  of  law  have  arisen  which,  in  its  opinion,  ought  to  be 
reviewed  by  the  Court  of  Appeals,  in  which  case  the  appeal  brings 
up  for  review  the  question  or  questions  so  certified,  and  no  other; 
and  the  Court  of  Appeals  shall  certify  to  the  Appellate  Division  its 
determination  upon  such  questions. 

§  191.  The  jurisdiction  conferred  by  the  last  section  is  subject 
to  the  following  limitations,  exceptions  and  conditions: 

1.  No  appeal  shall  be  taken  to  said  court,  in  any  civil  action  or 
proceeding  commenced  in  any  court  other  than  the  Supreme  Court, 
Court  of  Claims,  County  Court,  or  a  Surrogate's  Court,  unless  the 
Appellate  Division  of  the  Supreme  Court  allows  the  appeal  by  an 
order  made  at  the  term  which  rendered  the  determination,  or  at  the 
next  term  after  judgment  is  entered  thereupon,  and  shall  certifv 
that  in  its  opinion  a  question  of  law  is  involved  which  ought  to  be 
reviewed  by  the  Court  of  Appeals. 

2.  Xo  appeal  shall  be  taken  to  said  court  from  a  judgment  of 
affirmance  hereafter  rendered  in  an  action  to  recover  damages  for  a 


526  QUESTIONS  AND  ANSWERS. 

personal  injury,  or  to  recover  damages  for  injuries  resulting  in 
death,  or  in  an  action  to  set  aside  a  judgment,  sale,  transfer,  con- 
veyance, assignment,  or  written  instrument,  as  in  fraud  of  the 
rights  of  creditors,  or  in  an  action  to  recover  wages,  salary,  or  com- 
pensation for  services,  including  expenses  incidental  thereto,  or 
damages  for  breach  of  any  contract  therefor,  or  in  an  action  upon 
an  individual  bond  or  individual  undertaking  on  appeal,  when  the 
decision  of  the  Appellate  Division  of  the  Supreme  Court  is  unani- 
mous, unless  such  Appellate  Division  shall  certify  that,  in  its 
opinion,  a  question  of  law  is  involved  which  ought  to  be  reviewed 
by  the  Court  of  Appeals,  or  unless  in  case  of  its  refusal  so  to  certify, 
an  appeal  is  allowed  by  a  judge  of  the  Court  of  Appeals. 

3.  The  jurisdiction  of  the  court  is  limited  to  a  review  of  ques- 
tions of  law. 

4.  No  unanimous  decision  of  the  Appellate  Division  of  the  Su- 
preme Court  that  there  is  evidence  supporting  or  tending  to  sustain 
a  finding  of  fact  or  a  verdict  not  directed  by  the  court,  shall  be  re- 
viewed by  the  Court  of  Appeals. 

117.  Within  what  time  must  appeals  to  the  Court  of  Appeals  be 
taken  ? 

An  appeal  to  the  Court  of  Appeals,  from  a  final  judgment,  must 
be  taken,  within  one  year  after  final  judgment  is  entered,  upon  the 
determination  of  the  Appellate  Division  of  the  Supreme  Court,  and 
the  judgment-roll  filed.  An  appeal  to  the  Court  of  Appeals,  from 
an  order,  must  be  taken  within  sixty  days  after  service,  upon  the 
attorney  for  the  appellant,  of  a  copy  of  the  order  appealed  from, 
and  a  written  notice  of  the  entry  thereof.  Code  Civ.  Pro.,  §  1325. 

118.  What  security  is  necessary  to  perfect  an  appeal  to  the  Court 
of  Appeals? 

To  render  a  notice  of  appeal,  to  the  Court  of  Appeals,  effectual, 
for  any  purpose,  except  in  a  case  where  it  is  specially  prescribed  by 
law  that  security  is  not  necessary,  to  perfect  the  appeal,  the  appel- 
lant must  give  a  written  undertaking,  to  the  effect,  that  he  will  pay 
all  costs  and  damages,  which  may  be  awarded  against  him  on  the 
appeal,  not  exceeding  five  hundred  dollars.  The  appeal  is  per- 
fected, when  such  an  undertaking  is  given  and  a  copy  thereof,  with 
notice  of  the  filing  thereof,  is  served,  as  prescribed  in  this  title. 
Code  Civ.  Pro.,  §  1325. 

119.  What  security  is  necessary  to  stay  the  execution  of  judg- 
ment, pending  an  appeal  to  the  Court  of  Appeals? 

The  security  required  for  a  stay  depends  upon  the  nature  of  the 
order  or  judgment  appealed  from:  (1)  If  the  appeal  is  from  a 
money  judgment,  or  order  directing  its  payment,  the  undertaking 
must  secure  the  sum  which  may  be  directed  to  be  paid,  if  the  order 
01  judgment  is  affirmed,  or  the  appeal  dismissed.  (2)  If  the  appeal 


PLEADING  AND  PRACTICE  UNDER  NEW  YORK  CODE.      527 

is  from  an  order  or  judgment  for  delivery  of  a  document  or  per- 
sonal property;  or  (3)  of  a  chattel,  the  undertaking  must  be  in  a 
sum  fixed  by  the  court  below  that  the  appellant  will  obey  the 
direction  of  the  appellate  court.  But  in  (2)  a  stay  is  obtained  if 
the  document  or  personal  property  is  brought  into  the  court  below, 
or  placed  in  the  custody  of  some  person  designated  by  the  court. 
(4)  If  the  execution  of  a  conveyance  or  other  instrument  is  di- 
rected, the  instrument  must  be  executed  and  deposited  with  the 
clerk  of  the  court  below,  to  abide  the  direction  of  the  appellate 
court,  before  a  stay  is  obtained.  (5)  If  the  appeal  is  taken  from 
a  judgment,  or  order,  which  directs  the  sale  or  delivery  of  real 
property,  or  entitles  the  respondent  to  the  immediate  possession  of 
real  property,  it  does  not  stay  the  execution  of  the  judgment  or 
order,  until  the  appellant  gives  a  written  undertaking,  to  the  effect 
that  he  will  not,  while  in  possession  of  the  property,  commit,  or 
suffer  to  be  committed,  any  waste  thereon ;  and  if  the  property  is  in 
his  possession,  or  under  his  control,  the  undertaking  must  also  pro- 
vide that,  if  the  judgment  or  order  is  affirmed,  or  the  appeal  dis- 
missed, and  there  is  a  deficiency  upon  a  sale,  he  will  pay  the  value 
of  the  use  and  occupation  of  the  property,  or  the  part  thereof  as  to 
which  the  judgment  or  order  is  affirmed,  from  the  time  of  taking 
the  ar>peal,  until  the  delivery  of  the  possession  thereof,  pursuant  to 
the  judgment  or  order,  not  exceeding  a  specified  sum,  fixed  by 
the  judge  of  the  court  below.  Code  Civ.  Pro.,  §§  1327-1331. 

120.  How  is  an  undertaking  executed  and  served? 

Each  undertaking  must  be  executed  by  at  least  two  sureties,  and 
must  specify  the  residence  of  each  surety  therein.  A  copy  thereof, 
with  a  notice  showing  where  it  is  filed,  must  be  served  on  the  attor- 
ney for  the  adverse  party  with  the  notice  of  appeal,  or  before  the 
expiration  of  the  time  of  appeal.  Code  Civ.  Pro.,  §  1334.  Where 
a  surety  company  authorized  by  the  laws  of  this  State  to  do  busi- 
ness is  on  the  bond  no  other  surety  is  necessary.  Code  Civ.  Pro., 
§  811. 

121.  Under  wJiat  circumstances  may  a  respondent  except  to  the 
sureties  upon  an  undertaking? 

He  may  always  do  so  if  he  sees  fit.  It  is  not  necessary  that  the 
undertaking  should  be  approved;  but  attorney  for  the  respondent 
may,  within  ten  days  after  the  service  of  a  copy  of  the  undertaking 
with  notice  of  the  filing  thereof,  serve  upon  the  attorney  for  the 
appellant,  a  written  notice  that  he  excepts  to  the  sufficiency  of  the 
sureties.  Within  ten  days  thereafter,  the  sureties,  or  other  sureties 
in  a  new  undertaking  to  the  same  effect,  must  justify  before  the 
court  below,  or  a  judge  thereof,  or  a  referee  appointed  by  the  same, 
or  a  county  judge.  At  least  five  days'  notice  of  the  justification 
must  be  given.  Code  Civ.  Pro.,  §  1335. 


528  QUESTIONS  AND  ANSWERS. 

122.  What  questions  are  brought  up  for  review  in  an  appeal 
to  the  Court  of  Appeals? 

An  appeal  to  the  Court  of  Appeals  from  a  final  judgment  or  from 
an  order  granting  or  refusing  a  new  trial  in  an  action,  where  the 
appellant  stipulates  that  upon  affirmance  judgment  absolute  shall 
be  rendered  against  him,  brings  up  for  review  in  that  court  only 
questions  of  law;  but  where  the  justices  of  the  Appellate  Division 
from  which  an  appeal  is  taken  are  divided  upon  the  question  as  to 
whether  there  is  evidence  supporting,  or  tending  to  support,  a  find- 
ing or  verdict  not  directed  by  the  court,  a  question  for  review  is 
presented.  In  any  action  on  an  appeal  to  the  Court  of  Appeals, 
the  court  may  either  modify  or  affirm  the  judgment  or  order  ap- 
pealed from,  award  a  new  trial,  or  grant  to  either  party  such  judg- 
ment as  such  party  may  be  entitled  to.  Code  Civ.  Pro.,  §  1337. 

Upon  an  appeal  to  the  Court  of  Appeals  from  a  judgment,  re- 
versing a  judgment  entered  upon  the  report  of  a  referee,  or  a  de- 
termination in  the  trial  court;  or  from  an  order  granting  a  new 
trial,  upon  such  a  reversal;  it  must  be  presumed  that  the  judgment 
was  not  reversed,  or  the  new  trial  granted,  upon  a  question  of  fact, 
unless  the  contrary  clearly  appears  in  the  record  body  of  the  judg- 
ment or  order  appealed  from.  Code  Civ.  Pro.,  §  1338. 

c.     To  the  Appellate  Division  of  the  Supreme  Court. 

123.  When  may  a  party  appeal  to  the  Appellate  Division? 

An  appeal  may  be  taken  to  the  Appellate  Division  of  the  Su- 
preme Court  from  a  final  judgment  rendered  in  the  Supreme  Court 
or  in  any  Superior  City  Court,  prior  to  the  first  day  of  January, 
eighteen  hundred  and  ninety-six,  and  from  a  final  judgment  ren- 
dered in  the  Supreme  Court  after  said  day,  as  follows: 

1.  \Vhere  the  judgment  was  rendered  upon  a  trial  by  a  referee, 
or  by  the  court  without  a  jury,  the  appeal  may  be  taken  upon  ques- 
tions of  law,  or  upon  the  facts,  or  upon  both. 

2.  Where  the  judgment  was  rendered  upon  the  verdict  of  a  jury, 
the  appeal  may  be  taken  upon  questions  of  law. 

An  appeal  may  be  taken  to  the  Appellate  Division  of  the  Su- 
preme Court,  from  an  order,  made  prior  to  the  first  day  of  January, 
eighteen  hundred  and  ninety-six,  in  an  action  upon  notice,  at  a 
Special  Term  or  Trial  Term  of  a  Superior  City  Court,  or  of  the 
Supreme  Court,  or  at  a  term  of  the  Circuit  Court,  and  from  an 
order  made  at  a  Special  Term  or  Trial  Term  of  the  Supreme 
Court,  after  said  day.  in  either  of  the  following  cases : 

1.  Where  the  order  grants,  refuses,  continues,  or  modifies  a  pro- 
visional remedy;  or  settles,  or  grants,  or  refuses  an  application  to 
resettle  a  case  on  appeal  or  a  bill  of  exceptions. 

2.  Where  it  grants  or  refuses  a  new  trial ;  except  that  where  spe- 
cific questions  of  fact,  arising  upon  the  issues,  in  an  action  triable 
by  the  court,  have  been  tried  by  a  jury,  pursuant  to  an  order  for 


PLEADING  AND  PRACTICE  UNDER  NEW  YOEK  CODE.      529 

that  purpose,  as  prescribed  in  section  971  of  this  act,  an  appeal 
cannot  be  taken  from  an  order,  granting  or  refusing  a  new  trial, 
upon  the  merits. 

3.  Where  it  involves  some  part  of  the  merits. 

4.  Where  it  affects  a  substantial  right. 

5.  Where,  in  effect,  it  determines  the  action,  and  prevents  a 
judgment,  from  which  an  appeal  might  be  taken. 

6.  Where  it  determines  a  statutory  provision  of  the  State  to  be 
unconstitutional;  and  the  determination  appears  from  the  reasons 
.given  for  the  decision  thereupon,  or  is  necessarily  implied  in  the 
decision. 

An  order,  made  upon  a  summary  application,  after  judgment,  is 
deemed  to  have  been  made  in  the  action,  within  the  meaning  of 
this  section.  Code  Civ.  Pro.,  §§  1346,  1347. 

124.  TVithin  what  time  must  an  appeal  to  the  Appellate  Division 
be  taken,  and  what  is  required  to  obtain  a  stay? 

An  appeal,  authorized  by  this  title,  must  be  taken  within  thirty 
days  after  service,  upon  the  attorney  for  the  appellant,  of  a"  copy  of 
the  judgment  or  order  appealed  from,  and  a  written  notice  of  the 
entry  thereof.  Security  is  not  required  to  perfect  the  appeal,  but 
except  where  it  is  otherwise  specially  prescribed  by  law,  the  appeal 
does  not  stay  the  execution  of  the  judgment  or  order  appealed 
from,  unless  the  court,  in  or  from  which  the  appeal  is  taken,  or  a 
judge  thereof,  makes  an  order,  directing  such  a  stay.  Execution 
of  a  judgment  for  the  recovery  of  money  only  shall  not  be  stayed 
without  security  for  more  than  thirty  days  after  the  service  upon 
the  attorney  for  the  appellant  of  a  copy  of  the  judgment  and  writ- 
ten notice  of  the  entry  thereof.  Code  Civ.  Pro.,  §  1351. 

The  appellant  may  also  obtain  a  stay  by  giving  security,  as  re- 
quired in  an  appeal  to  the  Court  of  Appeals.  Code  Civ.  Pro., 
§  1352. 

Speaking  generally,  an  appeal  may  also  be  taken  to  the  Appellate 
Division  from  a  County  Court  or  any  other  court  of  record  possess- 
ing original  jurisdiction.  Code  Civ.  Pro.,  §  1340. 

d.     To  the  'Supreme  Court. 

125.  What  appeals  may  be  taken  to  the  Supreme  Court? 

Appeals  from  inferior  and  local  courts  in  the  county  of  New 
York  and  in  Buffalo  may  be  taken  to  the  Supreme  Court.  Code 
Civ.  Pro.,  §  1340. 

Appeals  from  the  inferior  courts  of  Manhattan  and  the  Bronx 
in  the  city  of  New  York  are  heard  by  the  Appellate  Term  of  the 
Supreme  Court,  composed  of  justices  of  the  Supreme  Court  ap- 
pointed by  the  Appellate  Division  under  the  authority  of  section 
1344. 

34 


530  QUESTIONS  AND  ANSWERS. 

XX.  MISCELLANEOUS  PROVISIONS. 

126.  What  are  ancillary  letters  testamentary,  or  ancillary  letters 
of  administration  with  the  will  annexed? 

They  are  letters  granted  by  a  Surrogate's  Court  upon  a  will  be- 
queathing personal  property  made  by  a  person  who  resided  without 
this  State  at  the  time  of  execution,  or  at  the  time  of  his  death, 
which  has  been  admitted  to  probate  in  the  foreign  country  or 
within  the  State  or  territory  of  the  United  States  where  it  was 
executed,  or  where  the  testator  resided  at  the  time  of  his  death. 
Code  Civ.  Pro.,  §  2695. 

127.  What  are  ancillary  letters  of  administration?  . 

They  are  letters  of  administration  granted  by  a  Surrogate's 
Court  upon  the  estate  of  an  intestate  who  resided,  prior  to  his 
death,  without  this  State,  and  who  left  personal  property  within 
the  jurisdiction  of  the  Surrogate's  Court  granting  the  letters. 
Code  Civ.  Pro.,  §  2696. 

128.  What  must  always  be  stated  in  an  affidavit,  upon  an  appli- 
cation to  obtain  an  ex  parte  order? 

Under  rule  25  of  the  Xew  York  Gen.  Rules  of  Practice,  when- 
ever application  is  made  ex  parte,  on  affidavit  to  a  judge  or  court 
for  an  order,  the  affidavit  shall  state  whether  any  previous  appli- 
cation has  been  made  for  such  order,  and  if  made,  to  what  court 
or  judge,  and  what  order  or  decision  was  made  therein,  and  what 
new  facts,  if  any,  are  claimed  to  be  shown.  And  for  the  omission 
to  comply  with  this  rule,  any  order  made  on  such  application 
may  be  revoked  or  set  aside. 

129.  How  is  a  discovery. of  books  and  papers  obtained? 

By  order  of  the  court  or  judge  authorized  to  make  an  order  in 
the  action,  on  a  verified  petition.  Code  Civ.  Pro.,  §  805.  See  Genl 
Rules  Prac.  14,  15,  and  16. 


INDEX. 


ABATEMENT,  paRe 

nature  of  plea  in : 281 

of   legacies,   defined .   328 

ACCEPTANCE.     (See  BILLS  AND  NOTES.') 

ACCESSION 294 

ACCIDENT,       ' 

denned .• 431 

no    liability   for 431 

ACC  OMMODATION  PAPER*. 41 

ADEMPTIC-v  OF  LEGACIES 323 

ADMINISTRATION.     (See  NEW  YORK  CODE;  WILLS.) 
ADVANCEMENT, 

defined .' 328 

distinguished  from  ademption 328 

ADVERSE  POSSESSION.     (See  NEW  YORK  CODE;  REAL  PROPERTY.) 
AGENCY.      (See  AGENT;   INSURANCE;   PARTNERSHIP;  PRINCIPAL  AND 
AGENT;  STATUTE  OF  FRAUDS.) 

principals,  who  may  be 1,      2 

agents,  who  may  be 2 

implied  authority  of  agents 2,       3 

ratification  by  principal 5-9 

relationship  of,  exists  when 10,     11 

undisclosed  principal 17,     18 

termination  of 18-20 

relationship  of,  fiduciary 22-24 

of  wife  for  husband 201 

of  child  for  parent 203 

as  *a  test  of  the  existence  of  a  partnership 249 

AGENT.     (See  PRINCIPAL  AND  AGENT;  TRUSTEE;  RATIFICATION.) 
In  general, 

delegation  of  authority  by 1,       4 

authority  of,  to  execute  sealed  instruments 2 

actual  and  incidental  authority  of 2.       3 

termination  of  agency 18-20 

can  act  for  both  buyer  and  seller,  when 23 

compensation  of  24 

compensation  due  from  both,  when 23 

[531] 


532  IXDEX. 

AGENT  — Continued: 

Liability  to  principal,  Page. 

for  delegation  of  authority 4 

gratuitous  agent,  not  liable  for  nonfeasance 20 

only  obliged  to  use  what  skill  he  has 21 

when  consignee  for  sale 21 

for  mixture  of  principal's  funds  with  his  own 21 

for  profits  made  at  principal's  expense 22-24,  25 

for  funds  misapplied,  barred  by  discharge  in  bankruptcy..  .  .  37 
Liability  to  third  persons, 

on  sealed  instruments 9 

on  bills  and  notes 9,  10,  18 

on  simple  contracts : 10 

on  contracts  made  for  an  undisclosed  principal 17 

ALIENATION,    RESTRAINTS    ON • 336-340 

See  REAL  PBOPERTY. 
ALTERATION.     (See  BILLS  AND  NOTES;  EVIDENCE;  SURETYSHIP.) 

AMBIGUITIES,  PATENT  AND  LATENT. . * 233,  234 

ANIMALS, 

liability  of  owner  for  injuries  by 438,  442,  443 

ANIMALS  'FERAE  NATURAE, 

subject  of  larceny,  when 168 

title  to 294 

APPEALS, 

under  New  York  Code . .  .* 524 

in  bankruptcy   . . . ; 38,  39 

ARBITRATION, 

agreements  for,  favored 108 

under  New  York  Code 516 

ARREST.     (See  NEW  YORK  CODE;  TORTS.) 

without   warrant    441 

for   felony    442 

for  misdemeanor 442 

of  judgment,  granted,  when 291 

ASSAULT, 

defined 430 

words  alone  not  an * .  .  430 

whether  action  for,  lies  against  one  using  excessive  force  to  repel.  433 

ASSIGNMENT, 

of  commercial  paper,  overdue 50,  51 

of  what  contracts,  valid 104,  105 

trust  of  chose  in  action  distinguished  from 458 

payment  of  debt  after  notice  of 458 

under   New   York    Code 489 

ASSUMPSIT.  ACTION  OF.     (See  PLEADING  AT  COMMOX  LAW.) 

ATTACHMENT.     (See  NEW  YORK  CODE;  TORTS.) 


INDEX..  533 

B.  Pa 

BAGGAGE 73,     74 

BAILMENT.     (See  CABBIEBS;  PERSONAL  PBOPEBTY;  SALES.) 
BANKRUPTCY. 
Jurisdiction, 

what  court  has 26 

of  State  courts,  how  affected 26 

in   summary   proceedings 37 

of   appellate   proceedings. .  '. .' 39 

Voluntary  proceedings, 

how  begun,  and  by  whom 26 

by  a  partnership 26 

partnership  creditors 27 

Involuntary  proceedings, 

against  whom  may  be  filed '. 27 

who  may  file 28 

act  of  bankruptcy,  what  is 27,     28 

Provable  debts, 

claim  for  damages  to  property  or  person 28 

unliquidated 28 

liquidated  by  judgment '. 28 

claim  for  conversion 28 

against  bankrupt  indorser 29 

against  bankrupt  maker  of  note,  indorsers  responsible 29 

proved  after  dividend,  effect 34 

when  to  be  proved 34 

Trustee, 

election 29 

title  to  goods  purchased  on  conditional  bill  of  sale 30 

to  goods  procured  by  fraud 30 

to  trust  funds " 31 

enforcement  of 37,     38 

Exemptions, 

in  accordance  with  State  laws,  when 31,     32 

how  claimed    31 

insurance  policies 32 

Examination  of  bankrupt, 

,  incriminating  questions    32 

as  affecting  discharge 32,     35 

Preferences  and  liens, 

mortgage  preferential  in  part 

materiality  of  intent,  to  prefer  the  creditor 

by  the  creditor  to  secure  preference 32,     33 

t                      lien,  by  attachment,  judgment,  etc.,  when  dissolved  by  bank- 
ruptcy  

•  by  mechanics'  lien,  not  dissolved 

sale  free  of,  by  order  of  court 


"INDEX. 

BANKRUPTCY  —  Continued: 
Sale  of  assets,  Page. 

free  of  liens,  effect  of 33 

Distribution  of  estate, 

priority  claims   34 

dividends 34 

upon  claims  proved  after  dividend  paid 34 

Composition, 

by  satisfaction  of  all  debts. 35 

by  majority  vote  of  creditors 35 

effect  of 35 

Discharge, 

grounds  for  refusal  of 35 

false  testimony  of  bankrupt,  effect  upon 36 

failure  to  claim,  effect  of. 36 

affects  what  kind  of  debts 36,  37 

effect  of,  upon  debt  not  scheduled 37 

upon  claims  for  conversion  of  money. .'. 37 

is  a  bar  but  not  an  extinguishment  of  debt 37,  101 

Summary  proceedings, 

plenary  suit  necessary,  when 37 

jurisdiction  of 38 

against  bankrupt  by  contempt  proceedings 38 

Appellate  proceedings, 

when  may  be  taken 38 

methods  of  review 38,  39 

jurisdiction  of 39 

BATTERY, 

defined .430 

"  BEST  EVIDENCE  "  RULE 229,  230 

BILL  OF  EXCHANGE.     (See  BILLS  AND  NOTES.) 
BILL  OF  LADING.     (See  SALES.) 

by  agent  without  authority 3 

stipulations  in,  will  bind  shipper,  when 65 

is  a  contract,  and  a  receipt,  and  also  represents  the  goods 70 

BILLS  AND  NOTES.     (See  NEGOTIABLE  INSTRUMENTS;  PRIVATE  COR- 
PORATIONS; MUNICIPAL  CORPORATIONS.) 
In  general, 

agent,  when  bound  personally  upon 9,  10 

formal  requisites  of 40,  41 

check,  status  of  a 42 

certificate  of  deposit,  status  of 42 

consideration,  necessary  when 42 

want  of,  may  be  shown,  when 42 

non-negotiable  paper   43 

alteration  in,  as  a  defense 48 

overdue  paper,  transfer  of 50,  5 1 

demand  note,  when  overdue 51,  57 


INDEX.  535 

BILLS  AND  NOTES  — Continued: 

In  general  —  Continued.  Pa  p 

voluntary  destruction  of,  by  holder,  effect 51 

days  of  grace 57 

due  diligence  by  holder  of,  may  be  waived 102 

.  corporations,  liability  of,  on  negotiable  paper 127 

not  subject  of  larceny,  at  common  law 168 

executed  by  a  partner,  bind  copartners,  when 200 

bank  forwarding,  for  collection,  guarantees  solvency  of  collect- 
ing bank,  when 453 

Acceptance, 

how  made  43 

liability  incurred  by 43 

conditional,  defined   44 

effect  of   44 

qualified,   defined 44 

effect  of 44 

supra  protest,  or  "  for  honor  " 44 

Indorsement, 

in  full,  mode  of •  44 

meaning  and  effect  of 44,  45,  52 

in  blank,  defined 45 

"  without  recourse,"  defined 45 

by  one  not  a  party  to  the  instrument,  effect 45 

"  irregular  "  or  "  anomalous,"  defined • 45 

if orged,  effect  of  payment  of  bil] 49 

discharge  of  liability  of  indorser,  how  effected 52,  53,  55 

indulgence  by  holder  to  indorser,  effect 52,  53 

by  partner,   after  dissolution  of   firm,  does  not  bind   former 

copa  rtners 264 

See  also  PRESENTMENT;  PBOTEST;  NOTICE  OF  DISHOXOB, 
infra. 

Transfer, 

delivery  without  indorsement,  effect  of 46 

to  bona  fide  purchaser 46—19 

of  overdue  paper 50,  51 

by  maker  or  indorser  who  has  become  the  .owner,  effect  of. .   54-56 

Purchase  for  value  without  notice, 

from  thief  before  maturity 46 

"  legal  "  and  "  equitable  "  defenses,  distinction 47 

"  value  "  defined 47 

"  notice "   defined    47,  48 

alteration  a  "  legal  "  defense 

forged  bill,  effect  of  payment  by  drawee 49,  349 

forged  indorsement,  effect  of  payment  by  drawee 49,  349 

raised  bill,  effect  of  payment  of 

after  paper  is  overdue 50- 

title  gained  by,  before  maturity,  perfect  after  maturity  also. .  50 


536  INDEX. 

BILLS  AND  NOTES  — Continued: 

Discharge,  Page. 

of  maker  or  acceptor,  how  effected 51,  52 

of  indorser,  when  discharges  subsequent  indorsers  also.  .  . .   52,  53 

payment  at  maturity  a  discharge  to  maker,  when . .  . . : 54 

to  indorsers,  when ^. .  .  55 

Retransfer, 

by  maker  who  has  paid  before  maturity 54 

by  drawer  or  indorser  who  has  paid  at  maturity,  effect  of ....  55 
Presentment, 

for  acceptance,  when  necessary ; 56,  note. 

for  payment,  when  necessary  and  why 5ft 

whether  necessary  to  hold  guarantor  of  note 56 

what  is  a  sufficient 57 

days  of  grace 57 

delay  in  making,  sometimes  excusable 58 

Protest, 

meaning  of 58 

how  made 58 

use  made  of 59 

Notice  of  dishonor, 

should  set  forth,  what 59 

why  necessary  , 59 

should  be  sent  when  and  how 60 

waiver  of    102 

BONA  FIDE  PURCHASER.     (Sec  BILLS  AND  NOTES;  SALES;  TRUST.) 
BURDEN  OF  PROOF.     (See  CARRIERS;  EVIDENCE.) 

c. 

CASE,  ACTION  OF.     (See  PLEADING  AT  COMMON  LAW.) 

CERTIFICATE  OF  DEPOSIT 42 

CERTIFICATION  OF  CHECK 49 

CERTIORARI, 

under  New  York  Code 510-512,  515 

CESTUI  QUE  TRUST.     (See  TRUSTS.) 

who  may  be 462 

want  of,  invalidates  trust,  when 462 

in  charitable  trusts 462 

transfer  of  interest  by 465 

to  two  successive  purchasers,  effect 465 

illustrations  of  above 465 

death  of 465,  466 

dower  rights  of  wife  of 466 

bankruptcy  of 466 

remedies  of,  against  trustee 468 

when  trustee  out  o^f  jurisdiction 469 

against  third  person,  who  dealt  with  trustee 469 

may  elect  to  take  proceeds  of  wrongful  sale 469 

statute  of  limitations  bars  remedv  of,  when 470 


INDEX.  537 

.         Page. 

CHAMPERTY 122 

CHECKS 42,  49 

CHOSE  IN  ACTION.     (See  TRUSTS.) 

transfer  of,  for  value  and  without  notice 464 

COMMON  CARRIER.     (See  BILL  OF  LADING;  SALES.) 
In  general, 

must  serve  all  comers  without  discrimination * 61,  72 

sleeping-car  company  not  a 62 

regulations  of,  when  binding  on  shipper  or  passenger.   64,  65,  75 

negligence,  liability  for,  cannot  be  avoided  by  contract. ...   65,  72 

termination  of  liability  by  delivery €5-67 

obligation  to  serve  all  comers,  nature  of 61,  68,  72 

compensation,  when  right  to,  accrues 68,  75 

prepaid,  must  be  refunded,  when €9,  351 

reasonable,  what  is 70 

legislature  can  fix  rate  of 81 

lien  of,  extent 69,  296,  297 

maritime,  peculiarity  of 71 

Carriers  of  goods, 

as  a  rule  must  have  possession 61 

absolutely  liable  for  loss  of  goods,  when 62-65 

excused  from  absolute  liability,  by  act  of  God «  62 

by  "  inherent  vice  "  of  goods 62 

by  acts  of  the  shipper 63 

by  seizure  under  legal  process 63 

by  "  stoppage  in  transitu  " 63-64 

by  published  regulations 64 

by  contract  65 

bound  only  to  use  "  ordinary  "  care,  when 63,  65 

liability,  for  delay  or  deviation 64 

for  acts  of  sub-carrier,  when 66 

when  consignee  not  found •• 67 

for  misdelivery   67 

Delivery, 

termination  of  liability  by 

by  first  carrier  to  second  terminates  liability 66 

must  follow  whose  orders  as  to 

must  be  made  to  person  intended 

excused  when  consignee  not  found 

on  "  second  "  bill  of  lading,  carrier  not  knowing  of  "  first " 

bill 

Remedies, 

whether  consignor  or  consignee  is  proper  plaintiff. 

carrier  has  burden  of  proof,  when 

Carriage  of  passengers, 

passenger  defined   

travellers  on  "  free  passes  " 72 


538  INDEX. 

COMMON  CARRIER  — Continued: 

Carriage  of  passengers  —  Continued :  Page. 

duty  to  use  "  utmost  care  "  in  providing  appliances. 73 

liability  for  injury  from  employees,  and  from  other  passengers.     73 

baggage,  defined 73 

when  carrier  liable  for  damage  to 74 

ticket^  denned   74 

proper  regulations  as  to,  what  are 75 

COMMON  COUNTS,  ACTION  ON 275 

CONDITIONAL  CONTRACTS.     (See  CONTRACTS.) 
CONFLICT  OF  LAWS, 

lex  loci  contractus  governs  validity  of  marriage 193 

jurisdiction  for  divorce 194 

will  made  in  one  State,  affecting  property  in  another 209,  320 

•will  affecting  real  estate,  must  conform  to  lex  loci  rei  sitae 320 

interpretation  of  wills  depends  upon  law  of  the  testator's  domicile.  320 

CONFUSION 295 

CONSENT, 

when  a  defense . . 431 

a  defense  in  action  for  seduction 431 

under  mistake  of  law 431 

CONSIDERATION.     (See  BILLS  AXD  NOTES;   CONTRACTS.) 

''valuable,"  defined 47,  464 

necessary  in  indulgence  to  principal  in  order  to  discharge  one  sec- 
ondarily liable   ,.   53,  415,  416 

in  conveyances  of  land  under  Statute  of  Uses 308 

CONSPIRACY.     (See  CRIMES.) 
CONSTITUTIONAL  LAWf, 
In  general, 

"  persons,"  defined    76 

"  privileges  and  immunities  " 77 

arbitrary  legislation  unconstitutional 83 

"  Due  process  of  law," 

as  affected  by  Fifth  Amendment  of  the  Constitution 77 

defined  and  illustrated, 78 

punishment  for  contempt  of  court 79 

relation  of  police  power  to 79 

Police  power, 

of  States,  effect  of  Fourteenth  Amendment  upon 79,     80 

defined,  in  general 80,     81 

regulations  under,  attitude  of  courts  toward 81,     83 

illustrations  of  exercise  of 82 

limitations  on 80-83 

cannot  be  bargained  away • 80 

"  Equal  protection  of  1he  la  its," 

as  to  foreign  corporations 76 

meaning  of,  illustrated 79,     83 


INDEX.  539 

CONSTITUTIONAL  LAW  —  Continued : 

Eminent  domain, 

defined  

Federal  government  has  the  right  of ^ 

public  use,  what  is,  a  judicial  question 84,     £(! 

what   property   is   necessary   for  a   public    use,   a   legislative 

question g , 

all  property  is  subject  to  right  of ; 85,     S'J 

"  taking,"  what  is  a £- 

Taxation, 

ground  of  right  of £.- 

for  what  purposes  proper S.i 

Federal  government  and  property  not  subject  to,  by  States..  60 
nor  State  government  or  property,  by  Federal  government. .  .  87 
power  of,  State  can  in  part  bargain  away 83 

Ex  post  facto  laws, 

prohibited  to  both  Federal  and  State  governments 87 

defined,  and  distinguished  from  retroactive  laws 87 

Obligation  of  contracts, 

Federal  government  can  impair 88 

charter  of  corporation  is  protected 8t 

change  in  remedy  does  not  impair 8S 

defined 83 

police  power,  exercise  of,  may  affect 89 

divorce  as  impairing 194 

Commerce,  regulation  of, 

power  of  States  as  to 89,     90 

legislation  as  to  "  trusts  " 120 

CONTEMPT  OF  COURT.     (See  BANKRUPTCY;  CONSTITUTIONAL  LAW; 

CHIMES.  ) 

CONTRACTS.  (See  CONSTITUTIONAL  LAW;  CORPORATIONS;  DOMESTIC 
RELATIONS;  EVIDENCE;  INSURANCE;  QUASI-CONTHACTS ;  SALES; 
SURETYSHIP.  ) 

In  general, 

•who  are  incapable  of  making 91,  197,  199 

"  unilateral  "  and  "  bilateral,"  what  are 91,     92 

for  benefit  of  third  party;  when  suit  can  be  brought  and  by 

whom 103,  104 

assignable,  what  classes  of,  are 104,  105 

warranties  and  representations. in,  distinguished 109 

of   marriage    190-193 

circumstances  surrounding,  may  always  be  shown 233 

differ  from  torts,  how 423 

Breach    of   contract. 

"  in  Jim  inf."  effect  of 113 

in  a  divisible  contract,  what  is  a 114.   1  '•> 

"  anticipatory  breach."  ri<rht  of  .nction  on,  accrues  when.  .    llfi.   1'7 

because  of  impossibility,  when  a  defense 118,   110 

because  of  sickness,  a  defense,  when 1 19 


540  INDEX. 

CONTRACTS  —  Continued : 

Conditional  contracts,  Page. 

classification  of 105 

conditions,  precedent,  defined ." 105 

subsequent,  defined 105 

concurrent,  defined  105 

express  and  implied,  defined 105 

promises,  independent  when 106-108 

held  concurrent  as  far  as  possible 106 

conditions  precedent,  illustrated 108,  109 

virtual  performance  of,  effect  of 109 

warranti3S  as 109 

express  conditions  must  be  literally  fulfilled 110,  114 

rule  relaxed  in  Xew  York 110,  111 

conditions  implied  in  fact,  must  be  literally  performed.  .  .    Ill,  114 

exceptions  to  rule Ill 

contracts  conditional  upon  notice 117,  118 

Consideration, 

must  be  a  detriment  to  promisor 96 

detriment,  what  is  a 97,  98 

unnecessary  in  a  contract  under  seal 97 

past  consideration  will  not  support  a  promise 98,  103 

adequacy  of,  will  ordinarily  not  be  looked  into 98,  99- 

will  be  regarded,  when 98 

in  a  subscription  list,  conflict  as  to 99 

forbearance  or  discontinuance  of  suit  as 99,  100 

moral,  history  of,  traced 100 

effect  of,  still  to  be  perceived,  where 101,  102 

void  in  part,  avoids  contract,  when 103 

good,   to  promise  to   pay  debt  barred  by   discharge   in  bank- 
ruptcy     37,  10L 

Divisible  contracts, 

what  are 114 

breach  of,  and  its  effect 114 

what  promises  are  independent  in 115 

Illegal  contracts, 

contracts  in  restraint  of  trade,  are 119 

restraint  of  trade,  what  is 119,  120 

Federal  legislation  as  to 120 

are  unenforceable,  when 121,  352 

wagering  contracts,  defined 121 

champerty   and   maintenance,    relaxation   of    common    law   as 

to 121,  122 

Mutual  consent;  offer  and  acceptance, 

meeting  of  minds,  meaning  of 92 

counter  offer  is  a  refusal  to  accept  original  offer 93 

acceptance,  mailing  of,  completes  contract,  when    93,  94 

by  wire,  completes  contract,  when 93,  94 


INDEX.  541 

CONTRACTS  —  Continued: 

Mutual  consent;  offer  and  acceptance  —  Continued:  pase- 

must  be  of  offer,  as  made 94,  95,     96 

revocation  of  offer  must  be  communicated  to  other  party 95 

Performance, 

prevented  by  defendant,  is  waived Ill 

what  is  sufficient,  when  work  is  to  be  "  to  the  satisfaction  " 

of  the  other  party Ill,  112 

in  part  only,  ends'  contract,  when 113 

"  breach  in  limine  " / 113 

"  ready  and  willing  " 116 

waiver  of Ill,  116 

refusal  to  perform,  right  of  action  for,  accrues  when 116 

impossibility  of,  when  a  defense 118,  119 

CONTRIBUTION, 

doctrine  of,  defined 209 

surety's  right  of 410,  411 

allowed  between  joint  tort-feasors,  when 429 

CONTRIBUTORY  NEGLIGENCE, 

as  a  defense 448 

must  be  proximate  cause  of  injury 452 

of  joint  tort-feasor,  no  defense 452 

not  a  defense  when  wrong  is  intentional 452 

CONVERSION.     (See  PLEADING  AT  COMMON  LAW;  TORTS.) 

claim  for,  provable  in  bankruptcy,  when ' 28 

defined 446 

effect  of  returning  goods 446 

by  necessity 447 

CORPORATIONS.      (See  PRIVATE   CORPORATIONS;   NEW  YORK  CODE; 
MUNICIPAL  CORPORATIONS.  ) 

CO-SURETYSHIP 408,  410 

COVENANT.     (See  SEALED  INSTRUMENTS.) 

action  of.     (See  PLEADING  AT  COMMON  LAW.) 
for  title.     (See  REAL  PROPERTY.) 
concerning  use  of  land.     (See  REAL  PROPERTY.) 

CREDIT  not  expired,  how  pleaded 287 

CRIMES.     (See  TORTS.) 
In  general, 

of  agent,  liability  of  principal  for 

liability  of  corporation  for 1 

defined , ] 

essentials  of * 

criminal  intent  defined 1 

capacity  for  committing '* 

attempt  to  commit,  essentials  of  an 

justification  for,  what  circumstances  will  constitute 

classification  of : ' 

principals  and  accessories,  defined • 


542  INDEX. 

CRIMES  —  Continued : 

In  general  —  Continued :  Page. 

classified 155 

jurisdiction  of,  depends  on  where  act  takes  effect 155 

when  stolen  goods  are  carried  into  another  county 15ft 

exists  in  both  State  and  Federal  governments,  when....  156 

of  married  women 201 

of  infants    204 

distinguished  from  torts .• 429 

Offenses  against  tho  government, 

bribery 156 

perjury 15ft 

contempt  of  court,  what  is 157 

not  strictly  a  crime 157 

proceedings    to    punish 157 

Offenses  against  public  peace  or  health, 

affray , "...  158 

riot 158 

libel  and  slander 158 

truth  of  libel  not  a  defense  at  common  law 159 

nuisance 159 

conspiracy,   defined    159 

merged  in  felony,  when .  160- 

Offenses  against   the  person, 

assault  and  battery.     (See  TORTS.) 

mayhem 160 

homicide,    defined .    161,  162 

is  either  murder  or  manslaughter 161 

by  mistake,  "  imputed  malice  " 161 

taking  life,  in  defense  of  person  or  property  is  murder,  when.  433 

in  defense  of  dwelling-house  is  murder,  when 434 

"  malice    aforethought  " 161 

provocation  will  reduce  murder  to  manslaughter,  when 161 

criminal  neglect,  causing  death,  may  be  murder 162 

proper  care  of  injuries,  failure  to  take,  no  defense 162 

death  must  occur  within  "  a  year  and  a  day  "   to  make   act 

homicide 1 62 

false  imprisonment.      (See  TORTS.) 

rape 162 

robbery 163 

Offenses  against  the  dn~  ell  ing -house, 

arson,  defined    163 

what   intent  sufficient  for 163 

not,  to  burn  house  one  owns  or  leases 163 

what   is   a   dwelling-house " 164 

burglary,    defined    1 64,  1 65 

whnt  "  breaking  "  is   sufficient 164 

what  is  an  "  entering  " 165 


INDEX.  543 

CRIMES  —  Continued: 

Offenses  against  property,  Paco 

larceny,   denned    , f(56 

"  possession,"  what  is  a  sufficient  taking  of 166 

fraud  in  gaining  possession  equivalent  to  trespass 166 

"  by   trick  " 166,  174 

"possession"  and  "custody,"  distinction 166,  171 

bailee  cannot  commit. .  % 167 

servant  has  custody  only .• 167 

by   finder 167,  168 

what  property  can  be  the  subject  of 168 

by  owner,  of  goods  attached  by  creditor 169 

by  wife,  of  goods  in  husband's  possession,  impossible....  169 

intent  in  taking,  must  be  to  steal 169 

and  must  exist  at  time  of  taking 168,  169 

animus    furandi,    defined 169 

from  the  person,   defined 170 

from  a  building,  defined 170 

of  property  owned  by  two  persons,  is  only  one  crime'.  ...  170 
distinguished    from    embezzlement    and    from    taking   by 

false  pretenses    174 

embezzlement,    defined    170 

a  taking  by  teller  of  bank,  after  banking  hours,  not.  ...  171 

distinguished  from  larceny  and  false  pretenses 174 

false  pretenses,  essentials  of 171,  172 

may  be  by  acts  alone 172 

illustrations  of  what  constitutes 172.  173 

carelessness  of  person  defrauded,  no  defense 173 

what  property  may  be  the  subject  of  a  taking  by 173 

distinguished  from  larceny  and  embezzlement. . 174 

receiving   stolen  goods .- 174 

forgery,  essentials  of 174,  175 

"  writing,"  what  is  a 174 

fraudulent  use  of  one's  own  name,  is 175 

trespass  ab  initio,  not  recognized  in 447 

Criminal  procedure, 

accusation  is  by  complaint,  information,  or  indictment 

grand  jury,  defined 

duties   of    

indictment,  requisites  of • 

"  jeopardy  for  same  offense,"  meaning  of. ... 
CURTESY.     (See  HUSBAXD  AXD  WIFE;  REAL  PROPERTY;  TUUSTS.) 

CYPRES,   DOCTRINE   OF 344 


D. 

DAMAGES.     (See  CONTRACTS;  SALES;  TORTS.) 

provable  in  bankruptcy,  when 


544  I^DEX. 

DAMAGES  —  Continued :  Page. 

damnum  absque  injuria,  defined 179 

injuria  "  imports  "  damage,  meaning  of 179 

remote,  no  liability  for 179 

for   prospective   injury 180 

exemplary  or  punitive,  when  granted 180 

anomalous   nature   of 180 

not  awarded  against  executor  of  tort-feasor 181 

may  be  granted  against  corporation 181 

liquidated  damages,  when  enforceable 182 

distinguished   from   penalty 182,  212 

recoverable  in  bankruptcy :  28 

when  affected  by  discharge  in  bankruptcy 36 

for  breach  of  contract,  on  sale  of  real  estate 183 

on  sale  of  goods 183,  184 

"  market   price  "    183 

include  probable   profits,  when 184,  185 

for   personal    services 185 

for  injury  to  property,  by  mining  coal '.  .  . .  185 

by  cutting  timber,  innocently  or  wilfully 185,  186,  294 

for  injury  to  the  person,  elements  to  be  considered 186,  187 

causing  mental  shock  only 186 

unaffected  by  poor  physical  condition  of  person  injured 186 

effect  upon,  of  neglect  of  the  injury  by  the  person  injured.  .  .  187 

measure  of,  when  death  ensues 187 

for  slander  and  libel,  facts  to  be  considered  in  estimating 183 

for   malicious   prosecution 1SS 

special,  must  be  specially  alleged 188 

special,  when  requisite  in  torts 429 

in   defamation    439 

verdict  for  more  damages  than  were  claimed,  effect  of 189 

excessive  or  insufficient,  verdict  for,  may  be  set  aside,  when....  189 

evidence  of  189 

DEBT, 

action  of.     (See  PLEADING  AT  COMMOX  LAW.) 

provable  in  bankruptcy,  how  and  when 28,  34 

how  affected  by  discharge  in  bankruptcy 36 

distinguished  from  a  trust 457 

whether  payment  of  interest  shows  a. 457 

whether  bank  deposit  is  a 458 

DECEIT, 

defined  .  .* 453 

whether  an  untrue  statement,  honestly  believed,  is 453 

liability  for,  to  party  not  intended  to  be  influenced 454 

whether  reliance  must  be  entire 454 

statements  as  to  value,  amount  to,  when 454 

DEDICATION, 

essentials   of    316 


LYDEX.  545 

DEED.     (See  DOMESTIC  RELATIONS;  REAL  PROPEBTY;  SEALED  ** 


MEXTS.) 

DEFAMATION, 

publication,  defined   .....................  433 

special  damage  in   ......................  439 

"  privileged   communications  "    ...............  _   439 

"  fair   comment  "    .......................  A±Q 

DEGREES, 

of  secondary  evidence  ...................................   230,  note. 

of  relationship,  how  computed   ...................  '  392    303 

of  care,  meaning  of   ................................  452 

DEL  CREDERE  FACTORS, 

distinguished  from  sureties  ...............................   407,  408 

DEMURRERS.     (See  NEW  YORK  CODE;  PLEADING  AT  COMMON  LAW.) 
DETINUE,  ACTION  OF.     (See  PLEADING  AT  COMMON  LAW.) 
DISCHARGE  OF  SURETY    ..................................  413-127 

(See  SURETYSHIP.) 
DISCOVERY,  BILLS  OF  .........................................  209 

under  New  York  Code   ......................................   530 

DIVORCE.     (See  DOMESTIC  RELATIONS.) 
DOMESTIC  RELATIONS, 
Marriage, 

defined  ................................................    190 

consent,  necessary   ...................................    190,  193 

insufficient  .........................................    190 

common-law  ...........................................    190 

consummation  .....................................   190,  191 

qualifications  for    .  .  ............  ..........................   191 

consanguinity,  effect  ^f   ..................................    1  92 

duress  as  avoiding  .......................................    193 

during  arrest  on  bastardy  proceedings  ................    193 

what  law  governs  validity  of   .............................    193 

Divorce, 

legislative  .............................................    193 

as  impairing  obligation  of  contract   ...................    194 

jurisdiction   for    .........................................    194 

for  cruelty  .............................................    195 

for  desertion   ............................................    195 

ill  treatment  as  defense   ..............................    196 

default  of  appearance  in  action  for  ........................    196 

collusion,  effect  of  .......................................   196 

connivance,  what  is,  and  effect  ............................    196 

condonation  ............................................   197 

recrimination  ..................  "  ........................    197 

35 


546  IXDEX. 

DOMESTIC  RELATIONS  — Continued: 

Husband  and  wife,  Pa<*e 

married  woman,  contract  of,  at  common  law  197 

under  modern  statutes    1&9,  20O 

conveyance  by  197 

in  equity 198,  19D 

suit  by    198,  200 

separate  estate  of   19D 

earnings   of 200 

torts  and  crimes  of 201 

tort  to,  who  must  sue   201 

husband,  rights  of,  in  wife's  real  estate 198,  29& 

in  wife's  personal  estate 198,  293 

deed  of,  to  wife 199 

action  by,  against  wife  200 

liability  of,  upon  purchases  by  wife 201 

for  her  torts 201 

for  her  crimes 201 

as  witnesses  for  or  against  each  other  202 

Parent  and  child, 

parent,  right  of  custody 202 

right  to  earnings    202 

right  to  services   202 

liability  of,  for  necessaries  203 

for  tort  of  child 203 

child,  tort  to,  recovery  for    203 

illegitimate,  status  of 203 

capacity  of,  to  hold  public  office   204 

to  commit  crime    204 

to  commit  tort   204 

liability  of,  for  necessaries   205 

contracts  and  conveyances  of,  voidable 205 

by  whom    205 

disaffirmanee   of    20& 

return  of  consideration  upon 207 

ratification  of   206 

DOWER.     (See  HUSBAND  AND  WIFE;  REAL  PROPERTY;  TRUSTS.) 
DRUXKEXXESS, 

invalidates  contract,  when    91 

excuse  for  crime,  when 153 

DUE  PROCESS  OF  LAW.     (See  CONSTITUTIONAL  LAW.) 

DURESS 432 

in   torts 432 

as  affecting  marriage   193 

E. 

EASEMEXTS.     (See  REAL  PROPERTY.) 

acquisition  of.  by  prescription 304 

must  be  conveyed  bv  deed   307 


INDEX.  547 

EASEMENTS  —  Continued :  P&RC 

but  may  be  extinguished  by  parol 317 

"  reservation  "of .   311 

"  implied  grant  "of   311,  312 

pass  by  deed  without  mention,  when 311 

ways  of  necessity    311 

"  continuous  and  apparent,"  pass  to  grantee,  when 31L 

enjoyment  of,  retained  by  grantor,  when  311 

defined  and  classified  „ 316,  319 

dominant  and  servient  tenement,  defined   31ft 

distinguished   from  "  profit "  or  "  common  "    316 

how  acquired  and  extinguished   316,  317 

maintenance  of,  rests  upon  whom  317 

of  party-walls,  maintenance  of  317 

are  confined  strictly  to  terms  of  grant  or  of  the  adverse  user. ...   317 
of  light  and  air,  defined  318 

cannot  be  gained  by  prescription  in  the  United  States 318 

of  lateral  support,  defined  318 

extent  of    318 

in  flowing  stream,  extent  of  319 

license,  distinguished  from    319 

EJECTMENT, 

action  of,  defined  276 

described,  and  history  of,  traced   , 334 

EMINENT  DOMAIN.      (See  CONSTITUTIONAL  LAW.) 
EQUITY.     (See  QUASI  CONTRACTS;  TORTS-,  TRUSTS.) 
In  general, 

origin  of  courts  of    208 

has  exclusive  jurisdiction,  when   208 

concurrent  jurisdiction,  when 208 

auxiliary  jurisdiction,  when 2 

equitable  conversion,  defined   - 2 

questions  of,  under  conflict  of  laws 20f> 

contribution,  doctrine  of   2 

marshalling  securities,  doctrine  of   2 

subrogation,   defined    2 

discovery,  bills  of   - 

interpleader,  bill  of,  defined  2 

when  used   ~ 

receiver,  powers  and  duties  of 

will  be  appointed,  when   - 

"  cloud  "  upon  title    

will  suffer  no  right  to  be  without  a  remedy 2 

who  comes  into,  must  do  so  with  clean  hands   

who  seeks,  must  do  equity   

between  equal  equities,  the  law  prevails   

follows  the  law   

will  not  assist  those  who  sleep  on  their  rights - 


548  IXDEX. 

EQUITY  —  Continued: 

In  general  —  Continued:  Page. 

penalty  distinguished  from  liquidated  damages   182,  212 

Limitations,  Statute  of,  in  470 

Accident, 

definition  and  examples  of 212 

•                penalty,  relief  against,  given  when  212 

Mistake, 

relief  against,  given  when  212 

of  law,  relief  against   212 

Fraud  (See  SALES;  TORTS.) 

is  undefinable    213 

relief  against,  given  when    213 

renders  transaction  voidable,  but  not  void 213 

remedies  for,  choice  of  213 

Specific  performance, 

nature  and  object  of   214 

will  be  decreed,  in  what  oases 214 

of  verbal  contract,  which  should  have  been  in  writing,  granted 

when 215 

Injunctions, 

denned *. 215 

mandatory  and  prohibitive,  distinguished  215 

when  granted 215 

ESCHEAT  .' ' 302 

ESTOPPEL.     (See  EVIDENCE.) 

title  by,  arises,  how 315 

breach  of  the  covenant  creating  a,  gives  right  of  action,  when,  315 
EVIDENCE.     (See  NEW  YOBK  CODE.) 
In  general, 

judicial  notice,  defined   216 

extent  of 216 

instances  of   216 

of  laws  of  the  States  216 

burden  of  proof,  defined    217 

"  shifts,"  in  what  sense   217 

presumption,   effect  of    218 

of  law 218 

of  fact  .  .  .   .-, 218 

of  death  after  seven  years'  absence,  effect  of 218 

does  not  indicate  time  of  death   218 

admissions  and  confessions,  distinguished   210 

Avhy   admissible    210 

admissions,  by  acrent,  when  binding  on  principal 219 

by  transferor  of  overdue  note  210 

confession  "  voluntary."   when    220 

fact,  questions  of,  decided,  by  court,  when   220 

verdict  reversed  as  against  evidence,  when 221 


INDEX.  549 

EVIDENCE  -^Continued : 

In  general — 'Continued:  i*&g*. 

negligence,  per  se,  what  is  221 

not  evidence  of,  to  repair,  machinery  a-fter  accident.  .221,  -1. 
range  of  evidence  to  show,  lies  in  discretion  of  court  ....   222 

similar  accidents  at  same  place,  as  evidence  of 222 

usual  practice  in  the  trade,  as  evidence  of 223 

character,  of  criminal  may  be  shown,  when  223 

defined 223 

may  be  shown  in  what  civil  cases 223 

Rule  against  hearsay,  and  exceptions, 

hear.say,  what  is   223 

when  admissible  as  such   . . . .' 224 

why  excluded    224 

testimony  given  in  another  case,  admissible  when 224 

dying  declarations,  scope  of  rule  admitting   224 

pedigree,  exception  as  to,  refers  to  what  classes  of  facts 225 

statements  as  to,  must  be  made  by  whom,  and  when  ....   223 
matters  of  public  and  general  interest,  exception  as  to,  rea- 
son of   225 

hearsay  evidence  as  to,  admissible  when 225,  22G 

ancient  document  "  proves  itself,"  when 226 

"  shop-book  "  exception,  extent  of  22G 

books  of  third  p^sons,  entries  in,  when  admissible 226 

admissible  even  in  lifetime  of  person  making 227 

,  declaration    against    proprietary    or    pecuniary    interest,    ad- 

'  missible 227 

carries  in  all  statements  bound  up  in  it 227 

declarations   as   to   mental   or   physical   condition,   admissible 

when ." 227 

"  res  gestce"  meaning  of   : 228 

Opinion, 

"  fact  "  and  "  opinion  "  distinguished  228 

experts,  proper  method  of  questioning 228 

of  non-professional  witmess,  when  Admissible   

genuineness  of  signature,  proof  of   

"Best  evidence,''  rule, 

t  "^O 

meaning  of 

•'  primary  "  evidence,  classes  of   .  .^ 

"  secondary "  evidence,  classes  of   - 

when  admissible  to  show  contents  of  document 

degrees  of    - 230,  note. 

Proof  of  authenticity  of  icritina*. 

genuineness  of  signature,  proof  of   2 

execution  of  documents,  how  proved  •  •   2 

exceptions  to  rule  concerning •  •   2 

alterations,  no  presumption  as  to  time  of  making 2 

O9  I 

effect  of - 


550  INDEX. 

EVIDENCE  —  Continued: 

"Parol  evidence  "  rule,  Pajre. 

.statement  of,  and  of  the  reason  of  its  existence 232 

limitations  upon  operation  of    232 

verbal  agreement  connected  with  written,  may  be  shown,  when,  232 
circumstances  surrounding  contracting  parties  or  a  testator, 

may  always  be  shown  233 

ambiguities,  "  patent "  and  "  latent,"  discussed  . , 233,  234 

"  extrinsic  "  evidence   234,  not,?. 

Witnesses, 

husband  and  wife  'as  202 

what  persons  are  incompetent  as 234 

are  "  privileged  "  to  refuse  to  answer  what  questions  ....   32,  235 

refreshing  recollection  of   , 235 

credibility  of,  attacked  how   236 

'discrediting  one's  own,  permissible  when   236 

EXECUTION, 

under  New  York  Code   522 

EXECUTORS  AND  ADMINISTRATORS.      (See  WILLS  AND  ADMINIS- 
TRATION. ) 

of  deceased  partner,  rights  of 251-253,  272 

distinguished  from  trustees    459 

EXONERATION, 

in  suretyship  412 


F. 

FELLOW  SERVANTS. 

doctrine  of    13,     14 

who  are    14 

"vice-principal    doctrine    14 

sufficient  number  of,  duty  of  principal  as  to 15 

FIXTURES .tf 320 

FORBEARANCE, 

of  suit,  as  consideration 99,  100 

FORCIBLE  ENTRY, 

defined 435 

FORGERY.     (See  CRIMES.)      « 

of  signature  of  drawer  of  bill  which  is  paid  by  drawee  to  Hona  fide 

holder;   drawee  cannot  recover 49 

of  indorsement  and  payment  by  drawee  as  above;   drawee  can  re- 
cover   „ 349 

of  body  of  bill  and  payment  by  drawee  as  above;   drawee  can  re- 
cover     349 

-of  indorsement  after  acceptance,  drawee  not  liable  to  indorsee.  ...     49 
forged  will,  payment  to  executor  appointed  under,  protected....    326 


IXDEX.  551 

• 

G.                                                         rase. 
GENERAL  AVERAGE    71 

GIFT, 

title  by,  how  acquired   .   294 

donatio  causa  mortis,  defined  294 

as  a  conveyance  of  real  property 307 

uncompleted,  does  not  create  a  trust 459,  460 

GUARANTOR, 

of  note,  whether  presentment  of  note  at  maturity  necessary  to  hold,    56 

GUARANTY.     (See  SUBETYSHIP.) 

•  4 

H. 

HABEAS  CORPUS, 

under  New  York  Code   ( with  form )    510-512 

HEARSAY    EVIDENCE,     RULE    AGAINST,     AND    EXCEPTIONS 

THERETO.     (See  EVIDENCE.) 
HUSBAND  AND   WIFE.      (See   CONTRACTS;    DOMESTIC   RELATIONS; 

INSURANCE;    MARRIED    WOMAN;    RliAL    PROPERTY;    TRUSTS.) 

each  has  insurable  interest  in  life  of  other 240 

right  of  husband  in  wife's  personal  property 293 

•  dower  and  curtesy,  defined 299 

dower,  right  of,  how  lost  or  barred 303 

I. 

IMPRISONMENT.     (See  ARREST.) 

what  constitutes 441 

INDEMNITY, 

distinguished  from  suretyship  400 

surety's   right   of 408,  409 

INDEPENDENT  CONTRACTOR,  • 

who  is  an   12 

INDICTMENT.     (See  CRIMES.) 
INDORSEMENT.     (See  BILLS  AND  NOTES.) 
INDORSER.     (See  BILLS  AND  NOTES.) 
INFANTS.     (See  DOMESTIC  RELATIONS.) 

can  act  as  agents 

whether  they  can  appoint  agents  fc 

contracts  of,  voidable 

effect  of  new  promise  after  coming  of  age,  upon 101 

capacitv  of,  to  commit  crime 153,  204 

•      *          r  101 

marriage  of   

disseized,  can  assert  rights  after  coming  of  age 

may  be  trustees   •* 

removed  from  trusteeship,  when   •  •  •  •  * 

may  bring  action  how.  under  New  York  Code 487 

INJUNCTIONS.     (See  EQUITY.) 

under  New  York  Code 496,  497 


552  INDEX. 

INSURANCE.     (See  CONTRACTS.) 

In.  general.  Pace. 

contract  of,  defined   237 

who  may  make 237 

premium,  nonpayment  of,  excused  when   238,  239 

assignment  of  policy  of   241 

waiver  241-243 

cancellation  of  policy  by  the  company    245 

Warranty,  representation  and  concealment, 

warranty  defined    237 

distinguished   from  representation    237 

falsity  of,  fatal    .- 237 

representation,  falsity  of,  avoids  policy,  when 237,  241 

must  be  true  at  consummation  of  contract 237 

oral,   disregarded  when 238 

made  by  agent  of  company,  acting  for  applicant,  how  far 

binding 241 

concealment,  defined    238 

effect  of   239 

Insurable  interest, 

must  exist  at  consummation  of  contract -239 

what  constitutes  an   239,  240 

who  has  an 240,  241 

husband  and  wife  each  have,  in  life  of  other 240 

parent  and  ehild  each  have,  in  life  of  other 240,  241 

assignee  of  policy  must  have 241 

Insurance  agents, 

powers  of  241 

when  defined  in  policy   241 

to  act  as  age^t  for  an  applicant 241,  242 

knowledge  of,  when  can  be  shown  against  company 242 

waiver  by,  binding  on  company,  when   241-243 

Reinsurance, 

defined 243 

liability  incurred  by  reinsurer  243 

Remedies, 

when  loss  occurs  before  issuance  of  policy 244 

by  reformation  of   contract    244 

for  fraud  or  mistake    244 

in  event  of  insolvency  of  the  company 244 

•when  insured  committed  suicide   245 

by  beneficiary  who  has  murdered  the  insured  24.") 

limitation  of  time   for  enforcing,  may  be  prescribed  by  Com- 


pany 


245 


arbitration,  stipulation  for,  when  enforcible 240 


INDEX.  553 

INTENT, 

e  i       u  Pace, 

wrongful,  when  requisite  m  tort  499 

1NTERESSE  TERMINI  

INTEREST, 

payment  of,  whether  shows  a  debt  or  a  trust 457 

INTERPLEADER.      (See  EQUITY;  NKW  YOKK  CODE.) 

bill  of,  defined   210 

when  used   210 

J. 

JUDGE, 

liability  of,  for  judicial  act 44g 

JUDGMENT, 

offer  of,  under  New  York  Code   491 

JURISDICTION, 

nature  of  plea"  to  the 281 

facts  essential  to   471 

in  bankruptcy   26,  39 

L. 

LEASE, 

for  life,  how  created  307 

for  years,  -how  created   307 

surrender  of  by  operation  of  law 307 

and  release,  conveyance  by,  described   309 

by  parol,  contravening  Statute  of  Frauds,  effect  of 310 

lessee  holding  over,  has  what  estate 310 

covenants  in,  run  with  the  land,  when  312,  313 

bind  assignees  of  lessor  and  lessee,  when 313 

eviction,  actual  and  constructive,  denned   335 

by  landlord,  effect  on  liability  for  rent  335 

by  stranger,  effect  on  liability  for  rent   335 

LIBEL, 

denned 438 

distinguished  from  slander   438' 

publication  of   438 

special  damage  in   439 

malice  in    • 433 

""  privileged  communications  "   439,  4^0 

"  fair  comment "    440 

LICENSE, 

denned 3 

distinguished  from  easement 319 

LIEN.      (See  BANKRUPTCY;   CARRIERS;  PERSONAL  PROPERTY;   SALES.) 
sale  free  of.  in  bankruptcy     

of  common  carrier,  extent  of   69 

71 
maritime 


554  INDEX. 

.LIEN  —  Continued :  Paso. 

of  bailee,  extent  of   296 

divested,  how , 296 

advantages  and  disadvantages  of  a  .  .' 296 

available,  when : 296 

specific  and  general,  distinguished   297 

on  land,  defined   304 

of  vendor  of  goods,  exists  when 380 

divested,  how 380 

LIMITATIONS.     (See  STATUTE  OF  LIMITATIONS.) 

LIS  PENDENS, 

object  of  filing   506 

under  Xew  York  Code 506 

LUNATICS, 

cannot  appoint  agents    1 

contracts  of,  binding  in  some  States   91 

cannot  be  held  for  crime 153 

marriage  of 191 

mental  capacity  to  make  a  will,  what  is  sufficient 321 

M. 

MAINTENANCE 122 

MALICE, 

when  requisite  in  tort   429 

in  defamation  439 

in  malicious  prosecution   441 

MALICIOUS  PROSECUTION, 

essential  facts  in  suit  for 441 

"  malice  "  in   441 

MANDAMUS, 

under  New  York  Code : 512 

MARRIAGE.     (See  DOMESTIC  RELATIONS.) 

MARRIED  WOMEN.     (See  HUSBAND  AND  WIFE.) 

can  act  as  agents,  when  2 

can  act  as  agent 2 

cannot  make  contract   91 

right  of,  to  property  of  firm  to  which  husband  belongs 253 

disseized,  can  assert  rights  after  disability  of  coverture  removed..  306 

can  make  will,  when  321 

can  bring  action  when,  under  New  York  Code  488 

MASTER  (of  vessel) 60,  61 

MAXIMS  IN  EQUITY 211 

MISTAKE.     (See  CONSENT;  EQUITY;  QUASI-CONTBACTS.) 

MORTGAGES.     (See  REAL  PROPERTY;  SALES.) 

MUNICIPAL  CORPORATIONS, 

distinction  between  public  and  private  character  of 146,  147 

legislative  control  of 146 

powers,  implied,  what  are   147,  150-152 

distinguished  from  those  of  private  corporation    147 


INDEX.  553 

MUNICIPAL  CORPORATIONS  —  Continued :  I>aRO 

acts  of  firemen,  police,  etc.,  in  performance  of  public  duty,  not 

liable  for   Hg 

defects  in  highway,   towns  and  counties  not  liable  for,  at  com- 
mon law  143 

cities  liable 148    149 

damage  from  defects  in  public  works,  when  liable  for 149,  150 

power  to  borrow  money   150 

to  issue  negotiable 'bonds  or  notes  150 

"  ultra  vires  "  contract,  how  far  liable  upon   151 

bonds  of,  with  recital  of  authority  to  issue,  are  binding 151,  152 


NECESSARIES.     (See  DOMESTIC  RELATIONS.)      • 
NECESSITY, 

excuses  a   conversion,  when *. 447 

excuses  a  conversion,  when   446 

NEGLIGENCE.     (See  EVIDENCE;  TORTS.) 

defined. 450,  451 

whether  there  are  degrees  of  452 

NEGOTIABLE  INSTRUMENTS.     (See  BILLS  AND  NOTES.) 

assignment  of,  how- different  from  assignment  of  chose  in  action.  .     40 

accommodation  paper,  defined 41 

indorsement,  mode  of,  and  effect 44-46 

transfer   of    46-5 1 

certificates  of  stock  are  not  140 

'bonds,  payable  to  bearer  or  to  order,  are   .' 1.41 

warehouse  receipts  are,  when   399 

NEW  YORK   CODE,   PLEADING  AND   PRACTICE  UNDER.     .(See 

PLEADING  AT  COMMON  LAW.) 
In  general, 

jurisdiction,  facts  essential  to   ' 470 

civil  action,  how  commenced  470 

joinder  of  causes  of  action  477 

negative  pregnant,  defined 483 

assignments,  what  are,  valid  489 

parties 487 

bill  of  particulars 489 

subpoena 490 

attachment;    arrest;    deposit,    etc.,   of    property;    injunction; 
receivers.      (See  NEW  YORK  CODE,  Provisional  remedies.) 

State   writs    51° 

supplemental   pleadings    4 

supplementary  proceedings    5 

Statute   of   Limitations    5 

executions  

appeals 

ancillary  letters  of  administration • 5 

discovery,  how  obtained   53t 


556  INDEX. 

NEW  YORK  CODE,  PLEADING  AND  PRACTICE  UNDER  — Con.: 

Actions  by  State  icrtt,  Pase. 

enumerated 510 

habeas  corpus  to  testify,  when  granted   510 

habeas  corpus  and  certiorari  to  inquire  into  cases  of  detention,  510 

discretion  in  granting 511 

form  of  511 

certiorari,  issues  instead  of  habeas  corpus,  when 512 

mandamus,  general  provisions  as  to   512 

obtained  how   512,  513 

prohibition,  general  provisions  as  to   513 

proceedings  upon    514 

assessment  of  damages   514 

certiorari  to  revie.w,  object  of  515- 

issued  when -. 515 

Answer, 

must  contain  what   '  481 

denial,  facts  provable  under   482 

partial  defense,  how  set  up    482 

numerous  defenses   .' 482 

equitable   defenses    482 

admission  in,  effect  of 483 

negative  pregnant    483 

party  must,  or  demur 483 

Appeals, 

when  allowed    524 

how  taken    524 

security  on,  when  limited  or  dispensed  with 524 

when  unnecessary 524 

to  the  Court  of  Appeals,  allowed  in  what  cases 525,  526 

time  limitation  on 526 

what  security  necessary  in   526 

what  security  necessary  to  stay  execution  pending 526 

undertaking  in,  executed  and  served,  how   527 

what  questions  reviewable  on   528 

to  the  Appellate  Division  of  the  Supreme  Court,  when  allowed,  528 

time  limitation  'on    52f) 

stay  obtainable  on,  when    529 

to  the  Supreme  Court,  lie,  when 52!) 

Arbitration, 

denned 516 

what  may  be  submitted  to   516 

Bill  of  particulars, 

defined 489 

when  granted 400 

procured   how    490 

Complaint.     (See  PLEADING  AT  COMMOX  LAW.) 

must  contain  what    477 

ioindcr  cf  causes  of  action  in   .  477 


INDEX.  557 

;\E\Y  YORK  CODE,  PLEADING  AND  PRACTICE  UNDER  — Con.: 

Counterclaim, 

Paee. 
denned 433 

may  be  set  up,  when 4g3 

rules   regulating    483)  434 

Demurrer, 

grounds  of   ^   439 

must  specify  what 481 

to  counterclaim,  grounds  of    481 

to  reply,  grounds  of   ' 431 

Evidence, 

parties  and  interested  persons,  competency  of,  to  give 507 

husband  and  wife,  competency  of,  to  give 507 

professional   confidences,   privileged   when 507 

Executions, 

enumerated  and  classified    522 

may  issue,  to  what  counties 522 

general  requisites  of   522 

requirements  of,  against  property  523 

against  the  person  523 

when  may  issue  of  course   523 

sale  on,  how  conducted  524 

Forms, 

summons 472 

affidavit  of  service  of  summons  and  complaint  474 

verification  .  .  .    479 

notice  of  appearance  and  demand 480 

requisition  in  replevin   503 

writ  of  habeas  corpus 511 

writ  of  certiorari  512 

Interpleader, 

obtainable  by  defendant,  in  what  actions   506 

on  showing  what   506 

Limitation  of  actions.     (See  STATUTE  OF  LIMITATIONS. ) 

defined 517 

acts  on  the  remedy 517 

must  be  pleaded -. 517 

actions  to  recover  real  property 518 

other   actions    518-521 

time  excluded  for  disabilities,  in  general  actions t  52') 

in  actions  for  recovery  of  real  property 520,  521 

adverse  possession,  what  constitutes 521 

Us  pendens, 

object  of  filing   506 

must  contain  what 5 

filed  where  506 


558        •  INDEX. 

NEW  YORK  CODE,  PLEADING  AND  PRACTICE  UNDER  — Con.: 

Lis  pcndcns  —  Continued :  Page. 

should  be  filed  when 506 

obligatory,  when 506 

Motions  on  the  pleadings, 

when  made   487 

grounds  of  487 

Notice  of  appearance, 

how  served 480 

form  of,  and  demand  . , 480 

Offer  of  judgment, 

how  made    t 491 

must  contain  what " 491 

effect  of  failure  to  accept  491 

Parties, 

infants,  how  made 487 

married  women,  how  made   488 

executors,  how  made  488 

.poor  person,  how  may  sue  488 

person  refusing  to  join  as  plaintiff,  how  reached 480 

assignee,  action  brought  by,  how   489 

Pleadings,  in  general, 

summons,  requisites  of   471 

form  of 472 

civil  action,  how  commenced  471 

when  defendant's  name  unknown .  473 

when  no  personal  claim  made  -against  a  party  defendant  ....  473 

who  may  serve 473 

service,  party  leaving  State  may  provide  for,  how 474 

negative   pregnant,   defined    483 

counterclaim,   defined    483 

may  be  set  up,  when 483 

rules  regulating  483 

reply : 484 

supplemental   pleadings    487 

general  provisions  as  to 485 

frivolous  and  sham   485 

verified,  may  not  be  struck  out 485 

amendments  of,  when  granted   485 

copy  must  be  served   486 

*        variance,  material  when    486 

parties 487 

bill  of  particulars  defined 489 

how   procured    490 

1  subpoena 490 

duces  tecum 490 

replevin 502 

State  writs    .  ,..'..,  .510 


INDEX.  559 

NEW  YORK  CODE,  PLEADING  AND  PRACTICE  UNDER  — Con.: 

Provisional  remedies,  page 

enumerated 493 

arrest,  allowed  when  493-496 

papers  necessary  for   495 

exemption  from    495 

bail  to  relieve  from,  qualifications  of 49ft 

injunctions,  when  granted 496,  497 

classification  of 496 

vacation   of 497 

attachment,  when  granted 498,  499 

affidavit  in  •. 500 

jurisdiction   for    •  501 

vacation  of    501 

modifying  warrant  of   501 

of  partnership  property   502 

deposit,  delivery,  or  conveyance  of  property,  provisions  relat- 
ing to   : 505 

receivers,  general  provisions  as  to 504 

Replevin, 

how  commenced 502 

what  papers  necessary  for 502 

affidavit  must  allege  what • * .  503 

defendant's  rights  in 504 

Reply, 

when  necessary 484 

court  may  require,  when   484 

matters  which  may  be  joined  in 484 

Subpoena, 

how   served    490 

duces  tecum,  denned 490 

Summons, 

service  on  foreign  corporation   475 

on  domestic  corporation  , 475 

substitutes  for  personal  service  of 476 

Supplementary  proceedings, 

affidavit  necessary   to  obtain  order   to  examine  a  judgment 

debtor 516 

Tender, 

how  made  4 

effect  of 49° 

Time  allowed  for  various  proceedings, 

how  computed  

can  be  extended,  when   

notice,  of  motion,  what  is  sufficient  .... 

of  argument,  what  is  sufficient 4 

of  taxation  of  costs,  what  is  sufficient 403 

of  trial,  what  is  sufficient  493 


560  INDEX. 

XE\V  YORK  CODE,  PLEADING  AND  PRACTICE  UNDER  — Con.: 

Time  alloucd  for  serving  pleadings  —  Continued:  ra<je. 

general  provisions  as  to.  when  service  is  made  by  mail 4!)3 

within  which  to  take  appeals 520-52!) 

Trials, 

jury,  in  civil  actions,  a  matter  of  right,  when 508 

by  court,  without  jury,  when 508 

new,  in  civil  actions,  when  granted 508 

how  applied  for  508 

reference,  compulsory  when  509 

jurors,  qualifications  of   509 

Verification, 

who  may  make    478 

when  necessary 479 

form  of,  to  pleadings 479 

Miscellaneous  provisions, 

ancillary  letters,  testamentary   530 

of  administration  with  the  will  annexed 530 

of  administration    530 

ex  parte  order,  allegation  in  affidavit  to  obtain  .  . . ., 530 

discovery,  how  obtained 530 

NON-NEGOTIABLE  NOTES    43 

NOTICE.     (See  NEW  YORK  CODE.) 

of  termination  of  agency  18-20 

of  equities,  in  purchase  of  bills  and  notes  48 

of  authority  of  corporation  to  contract 136 

of  change  in,  or  dissolution  of,  a  partnership,  to  prior  traders,  262-264 

as  to  purchase  of  choses  in  possession 384,  385 

in  dealing  with  a  trustee   464 

in  dealing  with  a  cestui  que  trust 465 

NOVATION, 

distinguished  from  suretyship    .  .  .^_ 400 

NUISANCE.     (See  CBIMES;  TORTS.) 

o. 

OFFICER, 

infant  as  public 204 

duty  of,  when  ownership  of  attachable  property  doubtful. .  .  .   449,  450 

liability  of,  when  acting  under  process 449 

when  acting  under  unconstitutional  law 450 

P. 
PARENT  AND  CHILD.      (See  DOMESTIC  RELATIONS.) 

"  PAROL  EVIDENCE  "  RULE ?.. .  232-234 

PARTNER.     (See  PARTNERSHIP,) 
In  fjcnrral. 

oral  ratification  by,  of  sealed  instrument , 1: 

4. 


INDEX.  561 


PARTNER  —  Continued: 

In  general  —  Continued: 


Page, 
transfer  of  interest  of,  to  sole  copartner  is  a  dissolution  of 

firm 253 

to  stranger,  effect  of 253 

who  confesses  judgment  in  suit  against  firm,  binds  himself 

onl.v 254,  268 

liable  jointly  and  severally  for  firm  debts 255 

as  creditor  of  firm,  rights  of 257 

can  sue  copartner  on  personal  claim 258 

executing  sealed  instrument  in  name  of  firm,  binds  only  him- 
self, when 260 

binds  himself  only,  on  simple  contracts,  when 261 

withdrawing,  liable  on  subsequent  dealings  of  firm,  when 262 

"  notice  to  one  partner,  notice  to  all  " 266 

who   is    trustee,   cannot   employ   his   firm   to   represent   trust 

estate 269 

duties  of,  to  firm 272 

Death  of  partner, 

partnership   property  passes  to  whom 251,  252,  253 

executor  has  only  a  right  to  an  accounting 251 

rights  of  firm  creditors  after 256 

surviving  partner  can  in  equity  assign  firm  real  estate  for 

benefit  of  creditors 265 

Bankrupt  partner, 

assignee  of.  takes  what  interest  in  partnership  property 253 

cannot  interfere  with  winding  up  of  business 263 

rights  of  firm  creditors  against .' . .  255 

firm  can  prove  against,  when 256 

copartner  can  prove  against,  when 257,  259 

Poioer  to  bind  copartners, 

partner  has,  by  sealed  instrument,  when 259,  260 

by  bills  and  notes,  when 260 

by   simple  contracts,  when 261 

by  an  assignment,  when 265 

by  part  payment  of  a  debt  barred  by  statute,  when 266 

by  beginning  action  at  law 267 

by  a  contract  against  will  of  copartners,  when 268 

by  receiving  payment  of  a  debt  to  firm 268 

by  his  torts,  when 2r>9 

by  breach  of  trust,  when 2~° 

partner  has  not,  after  dissolution,  by  indorsement  of  bill  or 

note '.••  264 

by  confession  of  judgment 254,  268 

Special  partner, 

risks  only  his  contribution " 

can  sue  firm,  or  be  sued  by  it - • 3 


562  INDEX. 

PARTNER  —  Continued: 

Special  partner  —  Continued :  Page. 

position  of,  as  to  firm  creditors 273 

as  to  the  copartners 273 

Dormant  partner, 

bound  by  dealings  after  withdrawal,  when 263 

may  be  joined  as  plaintiff  in  suit  by  firm 267 

PARTNERSHIP.     (See  PABTNEB.) 
In  general, 

distinguished  from  corporation 123,  247 

attributes   of    247,  248 

legal  title  to  property  of,  is  in  individual  members 250,  251 

deed  to  X.,  Y.  &  Co.,  effect  of 250 

personal  property  of,  is  held  jointly  by  partners 251 

real  property  of,  is  held  in  common. 251 

firm  having  common  partner  with  another  firm  can  sue  latter,  258 
one    partner    can    bind    copartners,    on    sealed    instrument, 

when 259,  260 

on  negotiable  instrument,  when 260 

on  simple  contracts,  when 261 

release  of  one  partner  by  creditor,  releases  the  others 266 

"  notice  to  one  partner,  notice  to  all  " 266 

majority  can  bind  objecting  minority  by  contract,  when 268 

torts  of  partner,  liability  of  copartners  for 269 

breach  of  trust,  liability  for 270 

winding  up    271,  272 

profits  and  losses,  apportipnment  of 271 

duties  of  partners  to  copartners 272 

attachment  of  property  of,  under  New  York  Code 502 

Existence  of  a  partnership, 

profits,  participation  in,  as  a  test  of 247,  248 

the  "  agency  "  test  of 249 

true  test  of 249 

Firm  as  a  "  legal  entity" 

one  partner  cannot  sue  firm 249,  258 

deed  to  X.  Y.  &  Co.,  effect  of 250,  251 

firm   cannot,    as    a   rule,    prove   against   estate   of   bankrupt 

partner 257 

firm  having  common  partner  with  another  firm  can  sue  latter.  258 
Quasi  or  nominal  partners, 

relation  discussed    250 

separate  creditors  of  the  real  trader,  rights  of 250 

creditors  of  the  ostensible  firm,  rights  of 250 

Firm  creditors, 

on  judgment  against  one  partner  only,  can   levy  upon  what 

property 254 

can  sue  one  partner  alone 255 

can    participate    in    separate   assets    of    a    bankrupt   partner, 

when 27.  256 


INDEX.  553 

PARTNERSHIP  —  Continued : 

Firm  creditors  —  Continued:  PtLKe 

can  recover  from  estate  of  deceased  partner  without  resort  to 

survivor,  when  27    256 

general   assignment   for   benefit  of,   executed   by  one  partner 

only,    binding  -when 265 

release  by,  of  one  partner,  releases  others 266 

Separate  creditors, 

levy  of  execution  by,  upon  firm  property 254 

who  take  firm  property  in  payment,  must  restore  it 269 

Dissolution, 

effected  by  transfer  of  interest  of  one  of  two  copartners  to  the 

other 253 

no  notice  of,  effect  on  rights  of  creditors 262-264 

dealings  after,  by  a  new  firm,  bind  former  partners,  when..   262 
by  remaining  partners,  bind  estate  of  bankrupt  partner, 

when 263 

by  survivor,  do  not  bind  estate  of  a  deceased  partner 263 

by  remaining  partners,  bind  estate  of  partner  who  has 

become  insane,  when 263 

by   remaining  partners,  bind  dormant   partner  who  has 

withdrawn,  when   263 

by  bankruptcy   or  death   of  one  partner;    survivor  has   sole 

right  to  wind  up  business 264 

terminates  right  of  partner  to  bind  copartners  by  indorse- 
ment   •. 264 

grounds  for,  summarized 270,  271 

settlement  of  accounts  after 271 

Judicial  proceedings, 

one  partner  may  begin,  in  name  of  all  the  partners 267. 

on  firm  contract,  must  be  in  the  name  of  all  the  partners.  . . .   267 

against  firm,  service  on  one  partner  sufficient,  when 267 

to  recover  firm  property  conveyed  to  separate  creditors 269 

against  firm,  for  tort  of  partner 269 

for  breach  of  trust 270 

PAYMENT, 

by    maker,    or    indorser    of    note,    discharges    subsequent    parties, 

when 52-54 

of  note  before  maturity,  when  a  defense 54 

of  note  at  maturity,  a  discharge,  when 54 

presentment  of  note  for,  why  necessary 56 

to  one  partner  of  debt  due  firm 268 

to  executor  under  a  forged  will,  protected 3 

of  money  by  mistake 347,  3; 

in  cash,  effect  on  passing  of  title  of  goods  sold 

made  as  directed  by  seller,  is  valid 

to  ao-ent  intrusted  with  goods  to  sell,  valid,  when 398 


5G4:  IXDEX. 


PERPETUITIES,   RULE   AGAINST  ......  .  ....................   341-345 

See  REAL  PROPERTY. 

PERSONAL  PROPERTY.     (See  LIEN;  REAL  PROPERTY;  SALES.) 
In  general, 

what  is,  within  definition  of  larceny  .......................    168 

definition  and  classification  of  ..............  ...............   293 

donatio  causa  mortis,  defined  ..............................   294 

pledge  of,  discussed  .......................................   297 

defense  of,  taking  life  in  .............................   433,  434 

using  force  in  ...................................   433,  434 

recaption  of    ............................................   434 

torts  affecting  ...............  -.  .......................   445—147 

creation  of  trust  of  .......................................   461 

deposit  of,  in  court,  under  New  York  Code  .................   505 

Acquisition  of  tille  to, 

by  marriage  ..........................  .-  .............    198,  293 

by  judicial   decree  ........................................   294 

by  adverse  holding  .......................................   294 

by  occupancy  ............................................  294 

by  gift    .................................................   294 

by   accession    ..............................  ,  .............   294 

by  confusion   ............................................  295 

Possession, 

sheriff,  who  abuses  his  right  of,  is  trespasser  ab  initio  ......   295 

sheriff  can  enforce  his  right  of,  against  whom  ..............   296 

by  bailee,   can  be  retained  to  enforce   payment  for  services, 
when  ................................................   295 

must  be  retained  or  lien  is  divested  .........................   296 

given  by  thief,  can  be  retained  against  owner,  when  .........   296 

PLEADING  AT  COMMON  LAW.     (See  CRIMES;  NEW  YORK  CODE.) 
In  general, 

declaration,  general  requisites  of  ..........................   277 

demurrers,  nature  and  effect  of  ........................  277-280 

dilatory  pleas,  defined  and  classified  ........................   281 

traverse,  general  requisites  of  a  ............................   281 

the  four  classes  of,  enumerated  ........................   282 

general  issue,  nature  and  effect  of,  in  the  various  actions.  .282-285 

specific     traverse,     nature    and    effect    of,     in     the     various 

%  actions  ..........................................   282-2S5 

special  traverse,  definition  and  object  of  ....................    285 

replication  de  injuria  .....................................   286 

pleas  of  confession  and  avoidance,  use  of  ....................   286 

classification  of  ......................................   286 

use  and  effect  of,  in  the  various  actions  ............  2S7-2S8 

duplicity,  rule  as  to,  discussed  ............................   289 

departure,  defined  ........................................   280 

when   fatal    .........................................   280 

a  defect  in  substance  .  .  .............  290 


565 

PLEADING  AT  COMMON  LAW  —  Continued : 

In  general  —  Continued:  Pa 

new  assignment,  nature  and  object  of 290,  291 

can  be  used,  when 290 

Case, 

the  general  issue  and  the  specific  traverse  in 284 

pleas  in  excuse  in '  288 

Debt, 

the  general  issue  and  the  specific  traverse  in 283 

pleas  in  excuse  in 287 

Demurrer, 

nature  of   277 

special,  distinguished  from  general  demurrer 278 

office  of    278,  280 

includes   general    demurrer 279 

is  not  a  plea 279 

admits  truth  of  what  facts  alleged  in  prior  pleadings 279 

opens  whole  record  for  defects  in  substance,  when 280 

Detinue, 

the  general  issue  and  the  specific  traverse  in 284 

pleas  in  excuse  in 288 

Forms  of  actions,  defined, 

debt , 274 

%  detinue 274 

covenant 274 

special  assumpsit  - 275 

general  assumpsit 275 

trespass 275 

'.  trover 275 

replevin 2 

case 276 

ejectment ^ "*" 

General  assumpsit, 

the  general  issue  and  the  specific  traverse  in 283 

987 

pleas  in  excuse  m - 

Motions  on  the  pleadings, 

arrest  of  judgment,  granted  when 2 

effect  of   

judgment  non  obstante  veredicto,  granted  when 

repleader,   granted   when 2 

r  o«V"> 

effect  of    

Replevin, 

the  general  issue  and  the  specific  traverse  in - 

Special  assumpsit. 

the  "eneral  issue  and  the  specific  traverse  in 

2S7 

pleas  m  excuse  in 

Trespass, 

the  general  issue  and  the  specific  traverse  in •  -  •' 

pleas  in  excuse  in 


566  INDEX. 

PLEADING  AT  COMMON  LAW  —  Continued : 

Trover,  Page. 

the  general  issue  and  the  specific  traverse  in 284 

pleas  in  excuse  in 288 

PLEDGE.     (See  PERSONAL  PROPERTY;  SALES.) 
POLICE  POWER.     (See  CONSTITUTIONAL  LAW;  CORPORATIONS.) 
PRESCRIPTION,  TITLE  BY.     (See  REAL  PROPERTY.) 
PRESUMPTION.     (See  EVIDENCE;  REAL  PROPERTY;   SALES.) 

of  mental  soundness .' 217,  218 

defined 218 

effect  of  a,  as  evidence ; 218 

of  law  and  of  fact 218 

of  death  after  seven  years'  absence 218 

as  to  time  when  alteration  of  a  document  is  made *. . . .  231 

arising  from  bequest  to  one  in  fiduciary  relation 322 

as  to  passing  of  title  in  sales 364-367 

PRINCIPAL  AND  AGENT.     (See  AGENCY;  AGENT.) 
In  general, 

deviation  of  agent  from  instructions 4 

ratification  of  unauthorized  act 5-9 

relationship  of,  exists  when •. 10-12 

termination  of  relation 18-20 

relationship  of,  fiduciary 22-24 

collusion  of  agent  with  third  party,  remedies  of  principal,  24,     25 

principal  bound  by  admissions  of  agent,  when 219 

Liability  of  principal  to  third  persons, 

-for  act  of  agent  contrary  to  orders 3 

substantial    performance  of  authority 4 

for  torts  of  agent,  when 11,     12 

for  act  of  independent  contractor,  when 12 

criminally  liable,  when 13 

after  authority  of  agent  revoked 18-20 

when  third  party  colludes  with  agent 25 

Liability  of  principal  to  agent, 

for  injury  by  fellow-servant : 13-16 

for  lack  of  suitable  appliances 15 

for  lack  of  sufficient  number  of  fellow-servants 15 

when  agent  knows  of  defects 16 

under  Employers'  Liability  Acts 16 

may  generally  revoke  authority 18 

"but  not  when  agency  coupled  with  an  interest 18,     19 

for  agent's  compensation 24 

PRIVATE  CORPORATIONS.     (See  MUNICIPAL  CORPORATIONS.) 
In  general, 

cannot  go  into  voluntary  bankruptcy 26 

are  "  persons,"  but  not  "  citizens  " 76,  124 

defined  .  ,  123 


INDEX.  567 

PRIVATE  CORPORATIONS  — Continued: 

In  general  —  Continued :  Pajce. 

classified 123 

partnerships,  different  from,  in  what  respects. . 123 

are  persons,  distinct  from  their  stockholders 124 

prohibition    against    acting    as    such    without    authority,    at 

common  law   125 

liability  of,  for  torts 130 

for   "  ultra  vires  "  torts 130 

for  crimes    130 

for  punitive  damages 181 

for  money  borrowed  contrary  to  charter .-.  352 

shares  of  stock  in,  are  personal  property 293 

Creation, 

by  special  charter  not  generally  necessary 125 

charter  must  be  accepted  by  corporators 125 

de  facto  corporations,  defined 125 

recognized  as  legal  when,  and  why 125,  126 

who  can  object  to  operations  of 125 

stockholders  in,  personally  liable,  when 126 

Powers, 

general  rules  of  construction : 126,  147 

in  derogation  of  common  right,  strictly  construed 127 

exclusive   rights  valid,   when 127 

as  to  the  issue  of  negotiable  paper,  test 127 

to  mortgage  or  sell  franchise  or  property 1 

to  buy  its  own  stock 1 

ultra  vires,  defined *?* 

Dissolution, 

not  effected  by  nonuser  of  corporate  rights 1 

methods  of,   summarized 1 

effect  of,  on  property  of  the  corporation 132 

Legislative  control, 

charter  is  a  contract 

police  power,  corporations  subject  to 131,  1' 

repeal  of  -charter,  effect  of,  on  property  rights 1 

alteration  of  charter  by  legislature,  when  and  in  what  re- 

1 T? 
spects,  possible  

Unauthorized  acts,  validity  of  (TOTBA  VIBES), 

ultra  vires,  defined 

unanimous  concurrence  of  stockholders  in,  effect  of 

whether  such  acts  are  absolutely  void •  • 

.1*  T_  ..........    134 — loo 

binding,  when  •. . 

knowledge  by  third  party,  effect  of 

specific  performance,  when  will  be  ordered •  •  •    W» 

prevention  of,  by  dissenting  stockholder 

Stockholders,  .„-    ^j 

decision  of  majority  binding,  when .  •  •  •  •  •  •  • 

right  of,  to  sue  on  behalf  of  corporation,  exists  whe 


568  INDEX. 

PRIVATE  CORPORATIONS  — Continued: 

Stockholders  —  Continued  :  Page. 

conditions   precedent  thereto 137,  138 

when  collusion  by  directors  exists 138 

denied  to  one  who  hajs  acquiesced  in  the  situation 139 

but  not  to  his  transferee  who  did  not  know  of  the  ac- 
quiescence     139 

transfer  of  stock  by,  how  far  analogous  to  that  of  negotiable 

paper 139,  140,   144 

is  between  an  ordinary  assignment,  and  a  transfer  of  a 

bill  or  note 139,  140 

certificates  of  stock  are  not  negotiable  instruments 140 

bonds  payable  to  bearer  or  to  order  are  negotiable 140 

right  of,  to  profits,  before  declaration  of  dividend 140 

after   such   declaration 140 

right  of,  to  compel  declaration  of  dividend 140 

to  agree  to  vote  in  a  certain  way. 141 

liability  of,  to  account  for  capital  divided  as  dividends 142 

on  "  bonus  "  stock,  and  ground,  thereof 143 

liability  of  purchaser  of  "  paid-up  "  stock 144 

payment  for  stock  in  land  or  services,  when  valid 144 

liability  by  statute  for  corporate  debts. 145,  146 

nature  of  obligation. '. . .    145 

enforceable     against     stockholder     after     sale     of     stock, 

when 145,  146 

Creditors, 

right    of,    to    interfere    with    management   of    "  going "    con- 
cern      110,   142 

to  follow  capital,  which  has  gone  back  to  stockholders  as 

dividends  or  otherwise 142 

right  to  compel  payment  of  stock  subscriptions  in  full 143 

ground  of 143 

enforceable  by  what  creditors 144 

as  against  purchaser  of  "  paid-up  "  stock 144 

right    to    collect    corporate    debts    from    stockholders,    statu- 
tory      145,  146 

PRIVILEGED  COMMUNICATIONS.     (See  EVIDENCE;  TORTS.) 

PROBATE.     (See  WILLS  AND  ADMINISTRATION.) 

PROCEDURE,  CIVIL.     (See  PLEADING  AT  COMMON  LAW;  NEW  YORK 

CODE.  ) 

PROCEDURE,  CRIMINAL.     (See  CRIMES.) 
PROFIT  A  PRENDRE, 

right  of,  distinguished  from  easement 316 

of   pasture,   defined 316 

of  estovers,   defined 316 

PROHIBITION,  WRIT  OF, 

under  New  York  Code ." 513 

PROMISSORY  NOTES.     (Bee  BILLS  AND  NOTES.) 


INDEX.  569 

PROPERTY.     (See  PERSONAL  PROPERTY;  REAL  PROPERTY.)  PaKe 

PROTEST 58 

PROXIMATE  CAUSE.     (See  TORTS.) 

PUBLIC  CORPORATIONS.     (See  MUNICIPAL  CORPORATIONS.) 

PUBLICATION, 

of  will,  defined 321 

in  slander  and  libel 43g 

PURCHASER  -  FOR  VALUE  WITHOUT  NOTICE.     (See  BILLS  AND 
NOTES;  SALES;  TRUSTS.) 

defined .47,  48,  464 

of  bill  or  note,  before  maturity,  acquires  perfect  title,  when 46-47 

takes  subject  to  "  real  "  defenses 47 

after  maturity  acquires  perfect  title,  when 50,     51 

of  goods,  from  one  holding  a  legal  title  voidable  by  true  owner, 

protected 397,  463 

from   trustee,   protected 463 

buyer  from  a,  also  protected,  though  having  notice  of  defect 463 

of  chose  in  action,  whether  gets  good  title 464 

of  equitable  interest,  from  cestui  que  trust 465 

Q. 

QUASI  CONTRACTS, 
In  general, 

nature  and  basis  of  obligation 346 

obligation  of,  is  independent  of  any  agreement 346 

action  on,  sometimes  concurrent  with  action  on  the  contract 

itself 352,  353 

Mistake, 

of  fact,  a  ground  of  recovery 347 

of  law,  generally  not  a  ground  of  recovery 347 

discussed 347 

no  recovery  for,  unless  defendant  is  unjustly  enriched 348 

payment  by,  to  agent,  when  recoverable 348 

of   bill    having   drawer's    signature   forged,   not 'recover- 
able    40,  349 

of  bill  having  forgery  in  body  of  instrument,  is  recover- 
able  •• «.34!> 

of  bill  having  forged  indorsement,  is'  recoverable 

as  to  title  of  chattel  sold,  implied  warranty  nevertheless.. 

as  to  title  of  land  sold,  no  warranty  implied   

as  to  existence  of  subject-matter  of  sale,  effect 348.  350 

Benefits  conferred,  recovery  for, 

when  conferred  in  pursuance  of  contract   3 

without  request,  but  intentionally,  allowed  when 

by  improvements  on  land,  occupied  under  oral  agreement  to 

convey,  allowed  when   

made  under  mistake  as  to  title 

at  request,  but  not  in  performance  of  contract  . 

under  belief  that  contract  for  the  services  exUt.-l 


570  INDEX. 

QUASI  CONTRACTS  —  Continued : 

Recovery,  when  defendant  has  failed  to  perform  contract,  Page. 

defendant  relying  upon  Statute  of  Frauds 350,  351 

not  allowed  unless  defendant  has  been  benefited  351 

allowed,  if  performance  is  impossible 351 

not  allowed,  of  money  paid  on  illegal  contract 351,  352 

exceptions  to  foregoing  rule   352 

of  money  loaned  corporation  contrary  to  charter  .- 352 

allowed,  on  tJie  contract,  when  failure  to  perform  is  wilful . .   352 
Recovery  ichen  plaintiff  has  failed  to  perform  contract, 

not  allowed,  when  failure  wilful  353 

when  defendant  is  still  ready  to  perform   354 

allowed,   for   substantial   performance,   breach  being   uninten- 
tional     353 

when  performance  of  contract  impossible 354 

even  if  defendant  is  not  benefited,  when 354 

"Waiver  of  tort" 

means  election  to  sue  in  tort  or  assumpsit 357 

goods   stolen  and  sold,  action  for   money  had  and  received, 

allowed 357 

goods  converted,  action  for  goods  sold,  allowed  where 357 

contract  avoided  for  fraud,  assumpsit  for  goods  sold,  allowed,  358 
dispossession  of  .real  estate,  common  counts  for  rent  not  al- 
lowed, why 358 

joint  tort-feasors,  election  of  remedy  against  each  358,  359 

Recovery  of  money  paid  under  compulsion, 

under  a  judgment,  reversed  later. on  appeal  359 

to  avoid  illegal  arrest 359 

to  avoid  injury  to  business   359 

to  induce  performance  of  duty,  e.  g.,  by  a  sheriff 359 

R. 

RATIFICATION.     (See  AGENCY;  PRINCIPAL  AND  AGENT.) 

needs  no  consideration 5 

who  can  ratify   5 

•  whether  a  forgery  can  be  ratified   5 

ineffectual,  when  .• 6,       7 

irrevocable ' : 6 

principal  cannot  ratify  in  part 7,       8 

oral,  of  sealed  instrument  7 

•what  constitutes  8 

of  infant's  contract   206 

HEAL    PROPERTY.       (See    EASEMENTS;    EVIDENCE;    HUSBAND    AND 
WIFE-,  LEASE-,  XEW  YOBK  CODE;  TORTS;  TRUSTS;  WATEB  AND 
WATERCOURSES;   WILLS  AND  ADMINISTRATION.) 
In  general, 

feudal  system,  outlined •. 298 

land  tenure  in  United  States   298 


INDEX.  571 

REAL  PROPERTY  —  Continued : 

In  general  —  Continued :  Page- 

freehold,  defined  298 

estates  classified,  according  to  quantity  of  interest 299 

according  to  time  of  enjoyment   300 

according  to  number  of  owners 301 

fee  simple,  defined 299 

fee  tail,  defined 299 

dower,   defined    299 

curtesy,  defined .' 198,  299 

estates  for  years,  at  will,  and  at  sufferance 300 

reversions  and  remainders   300 

estates  in  severalty,  joint-tenancy,  and  in  common,  defined. . .  301 

seisin  and  disseisin  301 

livery  of  seisin 301,  307 

"  descent  "  and  "  purchase,"  title  by,  distinguished 302 

person  under  a  disability  to  sue,  disseisin  of,  effect 306 

"  exception  "  and  "  reservation,"  defined 310 

•     water  rights   318,  319 

license  and  easement,  distinguished   319 

emblements,  defined 333 

include  only  fructus  indiistriales 333 

ejectment,  action  of,  described '. 276,  334 

waste,  liability  for,  arises,  when 334 

is  either  voluntary  or  permissive  334 

recaption  of 435 

occupier  of,  care  required  of,  toward  travellers  on  highway.  . .   436 

toward  trespassers  • 436 

toward   licensees    437 

toward  invited  persona   437 

trespass  upon   442 

by  animals    442,  443,  446 

by  necessity,  excused 443 

dangerous  use  of,  liability  for 4 

fire  and  explosions  upon,  liability  for 4 

creation  of  trust  of 461 

Acquisition  of  title  to,  loithout  conveyance, 

title  by  dower  and  curtesy 2 

title  by  descent  and  by  purchase,  distinguished 3 

title  by  escheat 3 

title  by  accretion   3 

canons  of  descent,  stated  

how  far  of  force  in  United  States 302,  3' 

degree  of  relationship  

adverse  possession,  title  by,  how  gained 

is  perfect,  whon 304.  305.  3 

includes  constructive  possession  

can  be  made  by  tacking  two  successive  disseisins,  where.     306 


572  INDEX. 

REAL  PROPERTY  —  Continued : 

Acquisition  of  title  to,  without  conveyance  —  Continued:  Page. 

gained  by  lessee  against  lessor,  how 305 

gained  by  innocent,  though  tortious,  possession 305 

against  person  under  disability  to  sue,  when  perfect 306 

title  by  prescription,  how  gained 304 

based  originally  on  a  "  lost  grant "  304 

enjoyment  of,  confined  strictly  to  the  user  by  which  it 

arose 317 

Voluntary  conveyances,  inter  vivos, 

primary  conveyances,  enumerated 306 

defined 306,  307 

secondary  conveyances,  enumerated  306 

denned 307 

surrender  of  estate  in  possession,  how  effected 307,  308 

Statute  of  Uses,  object  and  scope  of 308 

forms  of  conveyance  under   308 

by  bargain  and  sale 308 

iby  covenant  to  stand  seized 308 

by  lease  and  release  309 

forms  of.  prevailing  in  United  States  309 

description  of  land  by  monuments,  and  by  distances,  former 

prevail 309 

description   bounding   "  on "   highway   or   stream,  conveys   to 

the  center  line 309 

"exception,"  "reservation"  and  "implied  grant,"  contrasted,  310 

what  easements  pass  without  mention 311 

covenants  of  title  in  deeds,  described 312 

breach  of,  action  for,   accrues  when 312 

covenants  in  leases,  run  with  the  land,  when 312,  313 

covenants   (other  than  for  title)    in  deeds  conveying  fee,  run 

with  the  land,  when 313 

deed,  execution  of,  includes  signing,  sealing  and  delivery....  314 

sealing  of,  what  constitutes 314 

"  delivery  "  of,  a  question  of  intention 314 

must  be  accepted  by  grantee 314 

in  escrow,  how  made,  and  effect  of 315 

title  "  by  estoppel,"  meaning  of 315 

eviction  of  one  holding  by,  gives  right  of  action,  when.  .  .  315 

title  by  dedication,  essentials  of 316 

title  to  incorporeal  hereditaments,  how  acquired  and  how  ex- 
tinguished     316,  317 

Fixtures, 

definitions  of   329 

whether  real  or  personal  estate,  or  neither 329 

what   things    are,   generally   depends   on   intention   of   person 

making  annexation   329 

as  between  mortgagor  and  mortgagee 330 


INDEX.  573 

REAL  PROPERTY  —  Continued : 

Fixtures  —  Continued :  paffe 

as  between  landlord  and  tenant 330 

"  trade  fixtures,"  liberal  rule  concerning 330 

Mortgage, 

at  common  law,  created  what  estate 330 

rights  of  mortgagor  and  mortgagee  under 330 

"  equity  of  redemption,"  origin  of 331 

absolute  deed  may  be  shown,  by  parol,  to  be  a 331 

distinguished  from  a  contract  of  repurchase 331 

"once  a  mortgage,  always  a  mortgage,"  explained 332 

is    personal    property 332 

equity  of  redemption  is  a  legal  estate 332 

foreclosure  of,  "  strict  " 333 

"  equitable  " 333 

passes  upon  an  assignment  of  the  debt  as  an  incident  thereto,  461 

Restraints  on  alienation 336-340 

forfeiture  on  alienation 336-338 

prohibition  of  alienation 338-340 

spendthrift  trusts  340,  466 

Rule  against  perpetuities 341-343 

charitable  gifts 343,  344 

cypres 344 

definition  and  history 341 

gifts  to  a  class 345 

powers  of  appointment   342,  343 

RECEIVER, 

appointment  and  duties  of    210 

of  partnership,  will  be  appointed,  when  271 

tinder  New  York  Code 504 

RELEASE  

REPLEADER 292 

REPLEVIN,  ACTION  OF.     (Sec  PLEADING  AT  COMMON  LAW.) 

under  New  York  Code  502 

REPRESENTATION, 

in  contract,  test  of  what  is 1 

breach  of,  effect 1 

in  insurance,  meaning  of   - 

falsity  of,  effect 237.  - 

in  action  for  deceit 453>  454 

RESTRAINT  OF  TRADE.     (See  CONTRACTS.) 

RESTRAINTS  ON  ALIENATION 336-340 

See  REAL  PROPEKTT. 

REVOCATION, 

18 
of  agency   

of  win : *«-825 

RULE  AGAINST  PERPETUITIES 

See  REAL  PROPERTY. 


574:  INDEX. 

S. 

SALES.     (See  BANKBUFTCY;  CONTBACTS;  DAMAGES;  EQUITY;  STATUTE 
OF  FRAUDS;  TRUSTS.) 

In  general,  Page. 

defined 360 

essentials  of  a  sale 360 

caveat  emptor,  applies  when 360,  375,  376 

of  goods  which  have  ceased  to  exist,  impossible 360,  361 

of  anticipated  crops,  valid  when 361 

of  goods  not  owned  by  seller,  but  acquired  later,  title  passes 

when .' 361 

place  where  sale  becomes  complete,  how  determined 368 

payment  must  be  on  delivery,  when : 372 

voidable,  on  what  grounds ' 373 

by  executor,  pass  good  title 327 

by  sample,  of  goods  "  to  arrive  "   37;> 

lien  of  vendor,  exists  when 380 

divested»how 380 

buyer  stands  in  shoes  of  seller  as  to  title,  when 384 

bona  fide  purchaser,  gets  good  title,  when 383,  384,  397 

who  is   397,  398. 

possession  of  goods  retained  by  seller   is  a  badge  of  fraud, 

when 396,  397 

Factors'  Acts,  general  provisions  of,  summarized 397,  398- 

buyer  not  protected  by,  when 39S 

payment  to  agent  intrusted  with  goods  to  sell,  valid  when.  .  . .  398 

vendor's  liability  to  third  persons  for  injury  from  goods  sold.  .  435 

Caveat  emptor,  doctrine  of, 

applies,  as  a  general  rule 360 

applies,  when  there  is  an  opportunity  of  examination 376 

unless  seller  is  manufacturer  and  defect  not  apparent. . .  376 

applies  to  sale  where  seller  has  no  title 384 

Sale,  distinguished, 

from  bailment,  test 362 

from  pledge  or  mortgage  363 

from  consignment 36$ 

from  agreement  to  sell  364 

The  passing  of  title, 

when  vendor  acquires  title  after  the  sale  361 

subject  important,  why 363 

depends  solely  upon  intention  of  parties 363,  367 

on  sale  of  specific  chattel,  unconditionally  364 

cash  payment,  as  affecting 364 

on  sale  of  specific  chattel,  with  conditions  precedent 364 

where  chattels  are  part  of  uniform  mass   365 

by  subsequent  appropriation,  what  is  sufficient  appropriation,  366 

when  goods  are  to  be  manufactured 366" 

when  seller  ships  goods,  but  reserves  jus  disponendi 367 


INDEX.  575 

SALES  — Continued: 

The  passing  of  title  —  Continued:  Page 

determines  the  place  where  sale  occurs 368 

in  conditional  sales,  does  not  take  place  until  conditions  prece- 
dent are  performed   .   382 

buyer  acquires  only  what  title  seller  has 384 

fcorwi  fide  purchaser  gets  good  title,  when 384 

Delivery, 

sufficient,  where  contract  is  silent,  if  goods  are  at  disposal  of 

buyer 368 

at  what  place,  sufficient 368 

must  be  actually  made,  when 368 

within  what  time  sufficient  369 

invalid,  unless  buyer  can  inspect  goods 370 

by  installments,  requisites  of  370 

constructive,  sufficient  when   .' .   370 

denned 370 

and  payment,  must  concur,  when 372 

Acceptance, 

denned 371 

distinguished  from  "  receipt  " 37 1 

once  made,  binding 371 

is  waiver  of  breach  of  warranty,  when 372 

Breach  of  contract,  by  seller, 

remedies  for,  if  occurs  when  title  has  not  passed 373 

if  occurs  when  title  has  passed 374 

of  warranty,  meaning  of  374,  375 

distinguished  from  warranty  in  contracts 374 

whether  buyer  has  right  to  return  goods 374,  375 

of  implied  warranty,  that  goods  shall  be  merchantable. .   375,  376 

waiver  of,  by  acceptance 376 

of  express  warranty,  not  waived  by  acceptance 376 

in  quality  of  goods  made  to  order,  remedies  of  buyer. . . .  376,  377 
Breach  of  contract,  by  the  buyer, 

Ibv  refusal  to  accept  or  pay  for  goods,  remedy  of  seller. . .  377-380 
by  refusal  to  accept  article  specially  made  to  order,  measure 

of  damages  for   • 3 

defenses  in  action  upon  « • 3 

vendor  having  possession  -can  sell  goods,  after 379 

Conditional  sales, 

title  of  trustee  in  bankruptcy 

denned 38° 

distinguished,  from  bailment 3 

from  lease  3 

from  mort.arajje   

from  consignment 

passing  of  title  in 

conditions  precedent  must  be  performed  or  title  does  not  pass,  31 


576  INDEX. 

SALES  —  Continued : 

Conditional  sales  —  Continued:  Page. 

illustrations  of  foregoing 382 

sale  on  condition  subsequent,  title  passes  at  once 383 

rights  of  bona  fide  purchaser  from  vendee  in 383 

third  parties  dealing  with  vendee  in,  rights  of 383-384 

possession  given  to  vendee,  title  reserved,  vendor  is  protected.   383 

but  statutes  cover  this  case 383 

Stoppage  in  transitu,  right  of, 

defined 63,     64 

who  has   385 

may  be  exercised,  when  385 

not  destroyed  by  part  payment  for  goods 385,  386 

terminates,  when   386 

defeated  by  a   sale  or  pledge  by  consignee  to  bona  fide  pur- 
chaser, when   386-388 

Fraud.     (See  TRUSTS). 

title  gained  by,  bona  fide  purchaser  of,  protected.  .  .  .   384,  385,  387 
possession  by  vendor  after  sale  of  goods  is  badge  of,  when.  .  .  .   396 

by  buyer,  title  does  not  pass,  when 397 

SALVAGE, 

denned , 71 

compensation  for   71 

SATISFACTION 

by  gift  in  will,  denned 328,  329 

distinguished  from  ademption  and  advancement 328,  329 

SEALED  INSTRUMENT, 

agent's  authority  to  execute   2 

unauthorized  execution  of,  how  ratified 7 

agent,  When  bound  personally  upon 9 

consideration  unnecessary  in 97 

third  party  benefited  by,  cannot  sue  upon  it 104 

bonds  of  corporations  payable  to  bearer  or  to  order,  have  all  quali- 
ties of  negotiable  paper 140 

municipal  corporations,  power  of,  to  issue 150-152 

executed  by  a  partner,  bind  copartners,  when 259,  260 

bind  the  partner  himself,  when 260 

"  sealing,"  what  constitutes 314 

SEDUCTION, 

consent  a  defense  in 431 

SEISIN. 

defined 301 

livery  of.  defined 301 

SELF-DEFENSE.     (See  CRIMES:  TORTS.) 
SET-OFF.     (See  NEW  YORK  CODE.) 

against  payee  of  note,  whether  purchaser  after  maturity  subject 

"to  ...    .' 50>     51 

suretv's  right  to  use  principal  debtor's  claim  as  412 


INDEX.  57? 

SLANDER.     (See  CRIMES;  TORTS.) 

SPECIFIC  PERFORMANCE,  PaKe 

of  "  ultra  vires  "  contract,  will  be  ordered,  when 136 

nature  and  object  of 214 

decreed,  when 214,  215 

SPENDTHRIFT  TRUSTS 340,  466 

STATUTE  OF  FRAUDS.     (See  REAL  PROPERTY;  SALES.) 
In  general, 

specific  performance  of  verbal  contract  which  should  have  been 

in  writing  under,  enforced  when 215 

lease  by  parol  contrary  to,  effect  of  310 

effect  of,  is  upon  remedy  only 396 

When  a  defense  to  a  surety 404-408 

effect  of,  upon  creation  of  trusts  460 

As  to  agency, 

agent  may  make  memorandum  5 

memorandum  must  be  made  before  termination  of  authority. .      18 

del  credere  agency  may  be  created  orally 22 

As  to  sales, 

reasons  for  passing  the  statute  388 

section  17  of  statute,  quoted 389 

"  sale  of  goods,"  how  construed  389,  390 

"  goods,  wares,  and  merchandise,"  denned 390-392 

"  price  of  ten  pounds,"  defined  392 

"  acceptance,"  time  of 392 

defined 393 

and  receipt,  necessary  3 

"  actual  receipt,"  what  constitutes   3 

"  earnest,"  distinguished  from  "  part  payment  "  393,  3! 

"  note  or  memorandum,"  must  contain  what  terms  of  sale 3 

need  not  be  expressly  made  as  such 3 

may  consist  of  several  papers  3 

agent  to  sign,  who  may  be 39( 

STATUTE  OF  LIMITATIONS, 

new  promise  after  action  barred  by,  how  far  binding 101,  H 

to  whom  must  be  made 10- 

does  not  run  against  the  State  in  case  of  nuisance 1 

runs  against  representative  of  deceased  partner,  when 

part  payment  by  one  partner  on  debt  barred  by,  binds  copartners, 

••  ...-----     fcOO 

when • 294 

title  to  chattels  by  operation  of 

application   of,    to  acquisition   of   incorporeal   hereditam  y  ^ 

analogy '  04    3og 

title  gained  by  running  of,  perfect ;  •  •  • 

disability  to  sue,  effect  upon  running  of •  — • 

under  New  York  Code • '  4'4 

as  defense  to  surety ^ 

in  equity   


578  INDEX. 

STATUTE  OF  LIMITATIONS  —  Continued :  Page. 

as  between  trustee  and  cestui  que  trust 470 

under  New  York  Code 617-522 

STATUTE   OF  USES    '. 308,  309 

STOPPAGE  IN  TRANSITU.     (See  CABBIEBS;  SALES.) 

SUBPCENA  DUCES  TECUM  490 

SUBROGATION 209,  408,  409 

(See  SURETYSHIP.) 
SURETYSHIP, 

contribution 408,  410,  411 

cosuretyship 408-410 

discharge  of  surety  413-427 

alteration  of   contract 418-421 

change  in  circumstances  affecting  risk 418-421 

creditor's  loss  of  security   416-418 

fraud,   misrepresentation,   concealment    421-425 

giving  of  time  to  principal   415,  416 

notice  of  revocation  or  death  of  surety  425-427 

use  of  principal's  defenses 413-415 

distinguished  from  assignment  of  chose  in  action  401 

contract  for  benefit  of  another  401 

indemnity 400 

novation 400 

exoneration 412 

indemnity 408,  409 

nature  and  origin  of  relation  400,  401 

no  notice  of  default,  when  a  defense 403,  404 

notice  of  acceptance  of  continuing  guaranty  required 402 

set-off,  when  available  to  surety 412 

Statute  of   Frauds    ' 404-408 

del  credere  factors 407,  408 

"  new  and  original  consideration "   406,  407 

when  contract  voidable  for  infancy 405,  406 

•when  contract  void  for  coverture 406,  413 

•whether  memorandum  must  state  consideration  405 

subrogation 408,  409 

suretyship  proper  and  guaranty  distinguished,  401,  404,  405,  407,  408 
SURRENDER.     (See  REAL  PBOPEBTY.) 
SURVIVAL  OF  ACTIONS 326,  327 

T. 

TAXATION.     (See  CONSTITUTIONAL  LAW.) 

TENDER, 

what  is  a  sufficient  ! 116 

under  New  York  Code   490 

TORTS.       (See    CRIMES;    DAMAGES;     DOMESTIC    RELATIONS;    REAL.... 
PROPERTY.  ) 


INDEX.  579 

TORTS  —  Continued: 

In  general,  Pajce 

of  agent,  liability  of  principal  for 10-12 

liability  of  private  corporation  for  130 

liability  of  municipal  corporations  for   148-150 

of  partner,  liability  of  copartners  for  269 

•waiver  of,  and  election  to  sue  on  common  counts  (see  QUASI- 
CONTBACTS.  ) 

defined 428 

classified 428 

distinguished  from  contracts   428 

from   crimes    429 

contribution  between  joint  tort-feasors,  allowed,  when  429 

wrongful  motive  in,  when  requisite 429 

special  damage  in,  when  requisite   429 

necessity  an  excuse  for,  when ' 443,  447 

duty  of  insuring  safety   f 444 

sic  utere  tuo,  etc _.  .  444 

mistake,   effect   of    431,  440,  445 

Affecting  the  person, 

assault,    defined    , 430 

battery,  defined    430 

consent,  as  a  defense    431 

in  seduction    431 

under  mistake  of  law 431 

accident,   defined    431 

no  liability  for  431 

duress,   defined    . . 432 

self-defense, 

necessity  of  belief  of  danger   432 

retreating,  when  necessary   432 

excessive  force  in,  whether  action  lies 433 

for  protection,  not  revenge   445 

defense,  of  land,  may  use  what  force  in  

of  liberty  

of  person  or  property,  may  take  life,  when 433 

of   house 4 

recaption,  of  personalty    

of  realty 

*  j  off 

forcible  entry    

vendor's   liability  to  third  person   for   negligence    in  manu- 
facture of  goods  sold   4 

occupier  of  land,  duty  of,  toward  travellers  on  highway  . 

toward    trespassers    

-to-n-ard    licensees ' 4f  ^ 

toward  invited  persons    4 

as  to  dangerous  uses  of  land   

as  to  fire  and  explosives  on  his  land   445 


580  INDEX. 

TORTS  —  Continued : 

Affecting  the  person  —  Continued:  Page. 

injuries  by  animals,  owners  liability  for 438,  442,  443,  446 

defamation, 

publication 438 

special  damage 439 

malice 439 

"  privileged  communications  " 439,  440 

"  fair   comment  "    440 

libel  (see  defamation,  supra), 

defined 438 

distinguished  from  slander   438 

slander  (see  defamation,  supra), 

defined 438 

distinguished  from  libel  438 

words  actionable  per  se  439 

malicious  prosecution   441 

malice  in   441 

Affecting  personal  liberty, 

imprisonment 441 

arrest  with  warrant  441 

for  felony 442 

for  misdemeanor 442 

Affecting  realty, 

trespass 442 

by  animals  442,  443,  446 

excused  by  necessity   443 

dangerous  use  of  realty,  liability  for   444 

fire  or  explosives,  liability  for  use  of,  on  real  estate 445 

Affecting  personalty, 

trespass 445 

by  mistake    445 

in  defense  of  one's  own  property 445,  446 

conversion, 

defined 446 

effect  of  returning  goods   446 

by  necessity 446 

Trespass  ab  initio, 

entry  must  have  been  by  authority  of  laic 447 

affecting  the  person 447 

affecting  realty   447 

does  not  extend  to  crimes 447 

non-feasance  not  sufficient  for 447 

affecting  personalty  295,  448 

Defense  and  justification, 

that  plaintiff  was  a  wrongdoer 448 

justification,  when  acting  in  a  judicial  capacity 443 


IXDEX.  581 

TORTS  —  Continued : 

Defense  and  justification  —  Continued: 

when  officer  is  acting  under  process 

when  officer  acts  under  unconstitutional  law 450 

Proximate  cause, 

fact  coincident  in  time  not  necessarily  part  of 450 

definitions  of    459,  431 

discussed 451 

"Negligence, 

defined 451 

whether  there  are  degrees  of 452 

Contributory  negligence, 

must  be  proximate  cause  of  injury 452 

of  joint  tort-feasor,  no  defense  452 

not  a  defense  when  wrong  was  intentional 452 

Deceit, 

defined 453 

whether  untrue  statement,  honestly  believed,  is 453 

liability  to  party  not  intended  to  be  influenced  by 454 

whether  reliance  must  be  entire 454 

statement  as  to  value,  when  basis  of  action  for 454 

TRESPASS.     (See  PLEADING  AT  COMMON  LAW;  TOBTS.) 

on  land * 442 

by  animals   442,  446 

exception  when  from  highway   443 

excused  by  necessity 443 

to  personalty 445 

in  defense  of  one's  own  property f 445,  446 

;  by  mistake 445 

06  initio   448 

limitation   of 447 

affecting  the  person 44" 

affecting  realty    447 

does  not  extend  to  crimes 447 

non-feasance  not  sufficient  for 447 

affecting  personalty   295,  448 

TRESPASS  AB  IXITIO.     (See  TRESPASS.) 

TROVER,  ACTIOX  OF.     (See  PLEADING  AT  COMMON  LAW;  TORTS.) 
TRUSTS.     (See  EQUITY;  TRUSTEE.) 
In  general, 

defined  

subject  of  a  trust,  w^at,  may  be  _•  4 

distinguished  from  a  debt,  how ' 

whether  bank  forwarding  note  for  collection  is  a  trustee  . 

deposit  in  bank  is  not  a  trust 

of  chose  in  action,  distinguished  from  assignment 

distinguished  from.executorship 4°a 


582  INDEX. 

TRUSTS  —  Continued: 

Classification,  Page. 

express  or  direct,  defined  456 

how  created 456,  457 

implied,  denned 457 

resulting,  denned  457 

constructive 457,  460 

charitable,  denned 462 

"  spendthrift,"  defined    340,  466 

Creation  of  trust, 

by  declaration,  without  transfer  of  legal  title 459 

uncompleted  gift«does  not  create  trust 459 

Iby  transfer,  with  declaration  of  trust  for  a  third  person 460 

illustrations 460 

effect  of  Statute  of  Frauds  on 460,  461 

of  personalty 461 

of  mortgage 461 

of  realty  by  testator,  may  be  verbal  461 

The  trustee.     (See  TBUSTEE.) 

who  may  be '  .   461 

infant,  may  be  removed,  when  462 

may  not  resign  at  convenience  . . 462 

death  of , v 465 

wife  of,  has  no  dower  rights 466 

bankruptcy  of    31,  466 

alone  recognized  as  owner  of  legal  title. ,  .  / 467 

care  required  of 467 

may  not  bid  at  auction  of  trust  estate 46S 

remedies  against 468 

The  cestui  que  trust,   (see  CESTUI  QUE  TRUST), 

who  may  be 462 

want  of,   invalidates  trust,  when 462 

in  charitable   trusts 462 

death  of 465,  466 

dower  rights  of  wife  of 466 

bankruptcy  of 466 

remedies  of,  against  trustee 468 

Transfer  of  the  trust  property, 

by  the  trustee 463 

releases  from  the  trust,  when 463,  464 

illustrations 463.  464 

to  a  purchaser  for  value  and  without  notice 463,  464 

"  for  valuable  -consideration,"   defined 464 

"  without  notice,"  defined 464 

by  the  cestui 465 

whether  transferee  of  cestui  must  notify  the  trustee  in 

order  to  perfect  his  title 465 

to  the   trustee   after   an   assignment   to   a   third   person, 
effect  of  .  .   465 


INDEX.  583 

TRUSTS  —  Continued : 

Administration  of  trust,  Pa 

r trustee  aione  recognized  as  owner  of  legal  title 407 

illustrations 467 

care  required  of  trustee 467 

investment  of  trust-re* 467 

trustee  may  not  bid  at  auction  of  trust  estate 468 

remedies, 

of  cestui 468 

against  bankrupt  trustee,  not  barred  by  discharge,  when.     37 

against  a  trustee  out  of  jurisdiction 469 

against  third  persons 469 

may  elect  to  take  proceeds  of  wrongful  sale 469 

Statute  of  Limitations,  how  far  applicable  to 470 

TRUSTEE.     (See  TRUSTS;  EQUITY.) 

delegation  of  authority  by 1 

employment  by,  of  firm  in  which  he  is  a  partner 269 

defined 456 

whether  bank  forwarding  note  for  collection  is 458 

assignor  is  not  a,  for  assignee 458 

executor,   distinguished   from 459 

•vwto  may  be 461 

infant,  may  be  removed,  when 462 

may  not  resign  at  convenience 462 

transfer    of    trust-res    by,    releases    property    from    the    trust 

when 463,  464 

illustrations  of 463,  464 

to  a  purchaser  "  for  value  and  without  notice  " 463,  464 

death  of  • 48S 

wife  of,  has  no  dower  rights 46f 

bankruptcy  of 81,  4i 

alone  recognized  as  owner  of  legal  title 467 

4 o-r 

illustrations  * 

4ft7 

care  required  of 

investment  of  trust-res  by 

may  not  bid  at  auction  of  trust  estate 4 

remedies   against,   in  general 

when  out  of  the  jurisdiction 

liable  for  proceeds  of  wrongful  sale. . 

Statute  of  Limitations,  how  far  applicable  to 470 

u. 

UNDISCLOSED  PRINCIPAL. 

on  what  ground  held  on  agent's  contract * 

when  liable  to  the  third  party *' 

set-off  a.srainst,  by  third  party 

UNDUE  INFLUENCE  .  .  . 

usury,  when  a  defense  to  surety 


584  IXDEX. 

V. 

VICE-PRINCIPAL.     (-See  FELLOW-SEBVANTS. ) 

« 

w. 

WAIVER.    (See  INSUBANCE;  QUASI-CONTBACTS  ;  SALES.) 
"WAIVER  OF  TORT."     (See  Qu  ASI-  CON  TRACTS  ;  TOBTS.) 
WAREHOUSE  RECEIPT,  Page. 

effect  of,  indorsement  of 399 

WARRANTY.     (See  CONTBACTS;  INSUBANCE;  SALES.) 

- .     of  validity  of  bill  or  note,  by  indorsement 45 

in  law  of  contract,  as  an  express  condition 109 

test  of  what  is  a 109,  110 

breach  -of,  effect 110 

Sn  law  of  insurance,  denned 237 

effect  of  breach  of 237 

covenant  of,  in  deed,  defined 312 

broken  when 312 

who  can  sue  for  breach  of 312 

in  law  of  sales,  meaning  of 374,  375 

WATER  AND  WATERCOURSES, 

deed  of  land  bounded  on  stream,  conveys  to  center  line ».  309 

water  in  a  spring  or  well  is  part  of  the  land 318 

surface  water,  is  property  of  the  landowner,  when 318 

from  adjoining  land,  can' be  kept  off,  when 319 

flowing  stream,  easement  of  riparian  owners  in 318,  319 

WAYS  OF  NECESSITY 311 

WILLS   AND   ADMINISTRATION.     (See   NEW   YOBK    CODE;    REAL 

PBOPEBTT.  ) 
In  general, 

•history  of  wills,  outlined 319 

right  of  disposal  of  property  by  will,  dependent  upon  statute.  319 

real  estate,  will  disposing  of,  must  conform  to  lex  loci  rei  sitae.  320 

interpretation  of  wills  depends  upon  domicile  of  testator..    .  320 

probate  of  will,  denned 320 

effect  of   320 

nuncupative  will,  defined. 321 

married  woman  can  make  will,  when 321 

"  of  full  age,"  denned. 321 

publication,  defined   321 

"  will  speaks  at  death,"  explained 321 

mental  capacity  to  make  a  will,  what  is  sufficient 321 

"  undue  influence."   defined 322 

one  in  confidential  relation  to  testator,  bequest  to,  effect.  . . .  322 

incorporation  of  other  papers,  by  reference  thereto  in  will ....  322 
Execution  of  trills, 

of  real  estate,  must  conform  to  lex  loci  rei  sitae 320 


INDEX.  585 

\ 
WILLS  AXD  ADMINISTRATION  —  Continued: 

Execution  of  iciiis—  Continued:  pa_e 

if  witnesses  are  competent  at  attestation,  later  incompetency 

immaterial 323 

attestation  by  one  who  takes  legacy,  effect  of 323 

signing,  "  in  the  presence  "  of  the  testator,  defined 324 

what  is  a  sufficient 324 

acknowledgment  of  signature,  by  testator,  equivalent  to  sign- 
ing    324 

by  witnesses,  worthless 324 

Revocation  of  wills, 

general  methods,  outlined 324 

by  burning  or  tearing,  essentials  of 324 

by  cancellation,  defined 325 

by  marriage,  or  other  change  in  circumstances 325 

Probate  and  administration, 

probate  of  will,  means  what 320 

effect  of   320 

executor  "de  son  tort,"  defined 325 

liability  of '325 

administrator  de  Z>cmts  non,  defined 321 

forged  will,  payment  of  debt  to  executor  under,  protected. . : .  326 

what  rights  of  action  survive  to  executor 326 

what  actions  against  deceased  survive 327 

purchaser  of  personalty  from  executor  acquires  good  title 327 

lapsed  and  void  legacies  and  devises,  defined 327 

disposal  of  327 

"  abatement  "  of  legacies,  defined : 328 

"  ademption  "  of  legacies,  defined,  and  distinguished  from  "  ad- 
vancement "   and  "  satisfaction  " 328 

executor,  distinguished  from  trustee 459 

WITNESSES.     (See  EVIDENCE;  WILLS.) 


[Whole  number  of  pages,  C37.] 


